As filed with the Securities and Exchange
Commission on April 4, 2006
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule TO
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
THE WILBER CORPORATION
(Name of Subject Company (issuer))
THE WILBER CORPORATION-ISSUER
(Names of Filing Persons (identifying status as offeror,
issuer or other person))
Common Stock, $0.01 Par Value Per Share
(Title of Class of Securities)
967797 101
(CUSIP Number of Class of Securities)
Douglas C. Gulotty
The Wilber Corporation
245 Main Street
Oneonta, New York 13820
(607) 432-1700
(Name, address, and telephone numbers of person
authorized to receive notices and communications on
behalf of filing persons)
Copy to:
Clifford S. Weber, Esq.
Hinman, Howard & Kattell, LLP
106 Corporate Park Drive, Suite 317
White Plains, New York 10604
(914) 694-4102
CALCULATION OF FILING FEE
--------------------------------------------------------------------------------
Transaction valuation* Amount of filing fee
--------------------------------------------------------------------------------
$7,410,000 $1,482
-------------------------------------------------------------------------------
* Calculated solely for the purpose of determining the filing fee, based upon
the purchase of 650,000 shares at the maximum tender offer price of $11.40 per
share.
[_] Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: N/A Filing Party: N/A
Form or Registration No.: N/A Date Filed: N/A
[_] Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to
which the statement relates:
[_] third-party tender offer subject to Rule 14d-1.
[X] issuer tender offer subject to Rule 13e-4.
[_] going-private transaction subject to Rule 13e-3.
[_] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer:
[_]
Item 1. Summary Term Sheet.
The information set forth in "Summary" of the Offer to Purchase dated
April 4, 2006 ("Offer to Purchase") is incorporated herein by reference.
Item 2. Subject Company Information.
(a) The issuer of the securities to which this Schedule TO relates is
The Wilber Corporation, a New York corporation. The address of its principal
executive office, and its mailing address is 245 Main Street, Oneonta, New York
13820; 607 432-1700.
(b) This Schedule TO relates to the offer by The Wilber Corporation to
purchase up to 650,000 shares, or such lesser number of shares as are properly
tendered, of its common stock, $0.01 par value per share, 11,145,937 of which
shares were outstanding as of March 17, 2006.
(c) The information set forth in "Summary" and "Section 8, Price Range
of Shares; Dividends" of the Offer to Purchase is incorporated herein by
reference.
Item 3. Identity and Background of Filing Person.
(a) The Filing Person to which this Schedule TO relates is the Subject
Company. For information regarding the Subject Company, see Item 2(a) above.
The names, business addresses and business telephone numbers of the
directors and officers of the Subject Company are as follows:
Brian R. Wright David F. Wilber, III
Chairman of the Board c/o Wilber National Bank Trust Department
The Wilber Corporation P.O. Box 430
245 Main Street 245 Main Street
Oneonta, New York 13820 Oneonta, New York 13820
(607) 432-1700 (607) 432-1700
Alfred S. Whittet James F. Van Deusen
Vice Chairman of the Board President
The Wilber Corporation Southern New York Claim Service
245 Main Street One Walling Avenue
Oneonta, New York 13820 Oneonta, New York 13820
(607) 432-1700 (607) 432-5015
Douglas C. Gulotty Phillip J. Devine
President & Chief Executive Officer Attorney
The Wilber Corporation 9 Otsego Street
245 Main Street Oneonta, New York 13820
Oneonta, New York 13820 (607) 432-2350
(607) 432-1700
Joseph E. Sutaris Geoffrey A. Smith
Secretary, Treasurer and Chief Financial Officer President & Chief Executive Officer
The Wilber Corporation Medical Coaches, Inc
245 Main Street 399 County Highway 58
Oneonta, New York 13820 Oneonta, New York 13820
(607) 432-1700 (607) 432-1333
James L. Seward Joseph P. Mirabito
50th Senatorial District President
41 South Main Street Mirabito Fuel Group
Oneonta, New York 13820 44 Grand Street
(607) 432-5524 Sidney, New York 13838
(607) 561-2700
Richard E. Keene Olon T. Archer
President & Chief Executive Officer President & Chief Executive Officer
Keeneland Farm, Inc. Archer Enterprises, Inc.
1343 State Highway 51 15 Ravine Parkway
Gilberstville, New York Oneonta, New York 13820
(607) 783-2328 (607) 433-2222
Mary C. Albrecht
Retired Non-Profit Organization Executive
22 Newland Street
Otego, New York 13825
(607) 988-9044
Item 4. Terms of the Transaction.
(a) The information set forth in "Summary" and "Section 1, Number of
Shares; Proration," "Section 3, Procedure for Tendering Shares," "Section 4,
Withdrawal Rights," "Section 5, Acceptance for Payment of Shares and Payment of
Purchase Price", "Section 9, "Purpose of the Offer; Certain Effects of the
Offer," "Section 11, Source and Amount of Funds," "Section 12, Interest of
Directors and Officers; Transactions and Arrangements Concerning Shares",
"Section 13, Effects of the Offer on the Market for Shares; Registration under
the Exchange Act", and "Section 16, Extension of Tender Period; Termination;
Amendments", of the Offer to Purchase is incorporated herein by reference.
(b) The information set forth in "Summary" and "Section 9, Purpose of
the Offer; Certain Effects of the Offer" and "Section 12, Interest of the
Directors and Officers; Transactions and Arrangements Concerning Shares" of the
Offer to Purchase is incorporated herein by reference.
Item 5. Past Contacts, Transactions, Negotiations and Agreements.
2
(a) Brian R. Wright, the Chairman of the Board of the Subject Company,
is the beneficiary of an irrevocable trust ("Trust") established in a written
instrument dated December 22, 2003, pursuant to which The Wilber National Bank
("Bank"), the Subject Company's wholly owned subsidiary, has been appointed as
trustee. The Trust, which was established for tax planning purposes under
Florida law: i) appoints the Bank as trustee to administer the Trust for Mr.
Wright's benefit; ii) authorizes the Bank to make discretionary income and
principal payments to Mr. Wright; iii) directs the Bank to distribute the trust
property to Mr. Wright in each calendar year on a distribution date; and iv)
authorizes the Bank to vote securities which are part of the Trust property,
including the shares of the Subject Company's common stock beneficially owned by
Mr. Wright.
Item 6. Purposes of the Transaction and Plans and Proposals.
(a)-(c) The information set forth in "Summary", "Section 9, Purpose of
the Offer; Certain Effects of the Offer," "Section 11, Source and Amount of
Funds," and "Section 12, Interest of Directors and Officers; Transactions and
Arrangements Concerning Shares" of the Offer to Purchase is incorporated herein
by reference.
Item 7. Source and Amount of Funds or Other Consideration.
(a),(b),(d) The information set forth in "Section 11, Source and Amount
of Funds" of the Offer to Purchase is incorporated herein by reference.
Item 8. Interest in Securities of the Subject Company.
(a) The beneficial ownership of shares of the Subject Company's
officers and directors as of March 17, 2006, is as follows:
Brian R. Wright-3,433,600 shares (30.81%); David F. Wilber, III-374,976
shares (3.36%); Phillip J. Devine-78,520 shares (.70%); Joseph P.
Mirabito-70,715 shares (.63%);Olon T. Archer-34,100 shares (.31%); James F. Van
Deusen-25,000 shares (.22%); Alfred S. Whittet- 12,000 shares (.11%); Richard E.
Keene-4,800 shares (.04%); Geoffrey A. Smith- 2,800 shares (.03%); James L.
Seward-1,600 shares (.01%); Mary C. Albrecht- 400 shares (.004%); Douglas C.
Gulotty-200 shares (.002%); Joseph E. Sutaris-100 shares (.0009%).
(b) Pursuant to the terms of the trust described in Item 5(a), on
February 28, 2006, legal title to the shares of the Subject Company's common
stock held in such trust was transferred from the Bank to Mr. Wright.
Item 9. Persons/Assets, Retained, Employed, Compensated, or Used.
The information set forth in "Section 17, Solicitation Fees and
Expenses" of the Offer to Purchase is incorporated herein by reference.
Item 10. Financial Statements.
(a)-(b) Not applicable pursuant to Instruction 2 of Item 10 of Schedule
TO. For a better understanding of the effects of this transaction, however,
certain historical and pro forma
3
financial information has been set forth in "Section 10, Information Concerning
The Wilber Corporation -Summary Historical and Pro Forma Financial Information"
of the Offer to Purchase.
Item 11. Additional Information.
(a) If the Subject Company purchases additional shares in an amount up
to 2% of its outstanding shares, the approval of The Office of the Comptroller
of the Currency may be required for the dividend which the Wilber National Bank
will pay to the Subject Company to fund the purchase of shares tendered pursuant
to the Offer to Purchase. If the Subject Company finances the purchase of
tendered shares through the issuance of trust preferred securities, the approval
of the Board of Governors of the Federal Reserve System will be required. See
the information set forth in "Section 11, Source and Amount of Funds", "Section
14, Legal Matters, Regulatory Approvals" and "Section 16, Extension of Tender
Period; Termination; Amendments" of the Offer to Purchase.
(b) Not applicable.
Item 12. Exhibits.
(a) (1) Form of Offer to Purchase, dated April 4, 2006 and form of
Letter of Transmittal, including the Certification of Taxpayer Identification
Number on Form W-9.
(2) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees; form of Letter to Clients for Use by Brokers,
Dealers, Commercial Banks, Trust Companies and Other Nominees; form of Letter to
Shareholders of the Company, dated April 4, 2006, from Douglas C. Gulotty,
President and Chief Executive Officer of the Subject Company; Notice of
Guaranteed Delivery; Instruction Booklet; W-9 Guidelines; text of Press Release
issued by the Company, dated April 4, 2006; and text of Press Announcement to be
published in local and regional newspapers on or after April 4, 2006.
(b) Not applicable.
(d) Brian Wright Intangible Property Trust, dated December 22,
2003
(g) Not applicable.
(h) Not applicable.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Schedule TO is true, complete and
correct.
April 4, 2006 THE WILBER CORPORATION
/s/ Douglas C. Gulotty
-----------------------------------
Douglas C. Gulotty
President and Chief Executive Officer
4
Exhibit (a)(1)(i)
The Wilber Corporation
245 Main Street
Oneonta, New York 13820
(607) 432-1700
Offer to Purchase
Up to 650,000 Shares of its
Common Stock, Par Value $0.01 Per Share for Cash
At a Purchase Price Not Greater Than $11.40
Nor Less Than $9.90 Per Share
THE OFFER TO PURCHASE, PRORATION PERIOD AND WITHDRAWAL RIGHTS
EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON MAY 4, 2006
UNLESS THE OFFER TO PURCHASE IS EXTENDED
Questions or requests for assistance or for additional copies of this
Offer to Purchase, the Letter of Transmittal or other tender offer materials may
be directed to Sandler O'Neill & Partners, L.P., the Dealer Manager/Information
Agent, at the address and telephone number set forth on the back cover of this
Offer to Purchase, and copies will be furnished promptly at The Wilber
Corporation's expense. Shareholders may also contact their local broker, dealer,
commercial bank or trust company, legal or financial advisor for assistance
concerning the offer.
No person has been authorized to make any recommendation on behalf of
The Wilber Corporation as to whether shareholders should tender shares pursuant
to the offer. No person has been authorized to give any information or to make
any representations in connection with the offer other than those contained in
this document or in the related Letter of Transmittal. If given or made, the
recommendation and the other information and representations must not be relied
upon as having been authorized by The Wilber Corporation.
As used in this Offer to Purchase, the words "we", "us", "our" and
other similar words mean The Wilber Corporation and, where the context so
indicates, its subsidiaries. We sometimes refer to The Wilber Corporation as the
"Company" and to its wholly owned subsidiary, Wilber National Bank, as the
"Bank".
You may view and print this Offer to Purchase, the Letter of
Transmittal and other exhibits at our web site at "www.wilberbank.com" under the
link "About Us".
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THIS TRANSACTION OR PASSED UPON THE
MERITS OR FAIRNESS OF SUCH TRANSACTION OR PASSED UPON THE ADEQUACY OR ACCURACY
OF THE INFORMATION CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The Dealer Manager/Information Agent for the offer is:
Sandler O'Neill & Partners, L.P.
The date of this Offer to Purchase is April 4, 2006
TABLE OF CONTENTS
Page
QUESTIONS AND ANSWERS ABOUT THE OFFER TO PURCHASE..............................1
SUMMARY........................................................................1
1. NUMBER OF SHARES; PRORATION.................................................2
2. TENDERS BY HOLDERS OF FEWER THAN 100 SHARES.................................4
3. PROCEDURE FOR TENDERING SHARES..............................................5
4. WITHDRAWAL RIGHTS...........................................................8
5. ACCEPTANCE FOR PAYMENT OF SHARES AND PAYMENT OF PURCHASE PRICE..............9
6. CONDITIONAL TENDER OF SHARES...............................................10
7. CONDITIONS OF THE OFFER TO PURCHASE........................................10
8. PRICE RANGE OF SHARES; DIVIDENDS...........................................12
9. PURPOSE OF THE OFFER TO PURCHASE; CERTAIN EFFECTS OF THE
OFFER TO PURCHASE.............................................................13
10. INFORMATION CONCERNING THE WILBER CORPORATION.............................15
11. SOURCE AND AMOUNT OF FUNDS................................................19
12. INTEREST OF DIRECTORS AND OFFICERS; TRANSACTIONS AND ARRANGEMENTS
CONCERNING SHARES.............................................................19
13. EFFECTS OF THE OFFER TO PURCHASE ON THE MARKET FOR SHARES;
REGISTRATION UNDER THE EXCHANGE ACT...........................................21
14. LEGAL MATTERS; REGULATORY APPROVALS.......................................21
15. FEDERAL INCOME TAX CONSEQUENCES...........................................22
16. EXTENSION OF TENDER PERIOD; TERMINATION; AMENDMENTS.......................26
17. SOLICITATION FEES AND EXPENSES............................................27
18. WHERE YOU CAN OBTAIN ADDITIONAL INFORMATION...............................27
i
QUESTIONS AND ANSWERS ABOUT THE OFFER TO PURCHASE
What is the Offer?
We are inviting our shareholders to tender their shares of The Wilber
Corporation common stock, $.01 par value, at prices within the range of $9.90 to
$11.40 per share, payable net to the seller in cash, upon the terms and subject
to the conditions set forth in this Offer to Purchase and in the associated
Letter of Transmittal.
What is the market price for the common stock compared to the purchase price in
the Offer?
On March 17, 2006, the closing price for the shares as reported by the American
Stock Exchange was $10.00 per share. We encourage you to obtain current market
quotations for The Wilber Corporation shares. The trading symbol for The Wilber
Corporation shares is "GIW."
What will happen if more than 650,000 shares are tendered?
If more than 650,000 shares are tendered, we may purchase tendered shares: (i)
first from any shareholder who owned, beneficially or of record, as of the close
of business on March 17, 2006 and continues to own, beneficially or of record,
as of the Expiration Date of the Offer (as defined herein), an aggregate of
fewer than 100 shares and who validly tenders all of his or her shares; and (ii)
then, subject to proration as described in this Offer to Purchase, from all
other tendering shareholders. This means that we will not purchase all of the
shares that you may tender to us if too many shares are tendered by our
shareholders, unless you qualify as an "odd lot" holder as described in (i)
above. In the event more than 650,000 shares are validly tendered, we may decide
to purchase additional shares in an amount up to 2% of our outstanding shares
(currently equal to about 222,919 shares).
What is the purpose of the Offer?
Prior to announcing our offer, we have considered a variety of alternative uses
of our excess capital. After considering these alternatives, we have determined
that investing in our shares would result in a more optimal capital structure.
Our Offer also provides our shareholders who are considering a sale of their
shares with the opportunity, if those shares are purchased in our Offer, to sell
those shares for cash without the usual transaction costs associated with open
market sales. See Section 9 of this Offer to Purchase for more information on
our purpose in making the offer.
How do I tender shares that I hold in certificate form ?
If you hold your shares in certificate form, you must return a properly
completed Letter of Transmittal and any other documents required by the Letter
of Transmittal, together with the certificates for the shares being tendered, to
our depositary, Registrar and Transfer Company (the "Depositary"). These items
must be received by the Depositary by 5:00 p.m., New York City Time on May 4,
2006, unless the offer is extended.
How do I tender my shares if they are held by my broker?
If your shares are registered in street name with a broker, dealer, commercial
bank, trust company or other nominee, you will need to contact your broker, bank
or other nominee and instruct the nominee to make the tender of your shares for
you. You cannot tender your shares using the Letter of Transmittal even though
you may have received one for your information. If you are a broker and are
tendering shares in book-entry form for your customers, you must comply with the
book-entry delivery procedure described in Section 3 of this Offer to Purchase.
What if I can't deliver my shares in time?
If you want to tender your shares but your share certificates are not
immediately available or cannot be delivered to the Depositary before the
Expiration Date, the procedure for book-entry transfer cannot be completed on a
timely basis, or time will not permit all required documents to reach the
Depositary before the Expiration Date, you can still tender your shares by
following the guaranteed delivery procedure described in Section 3 of this Offer
to Purchase.
1
What if I can't deliver my shares in time?
If you want to tender your shares but your share certificates are not
immediately available or cannot be delivered to the Depositary before the
Expiration Date, the procedure for book-entry transfer cannot be completed on a
timely basis, or time will not permit all required documents to reach the
Depositary before the Expiration Date, you can still tender your shares by
following the guaranteed delivery procedure described in Section 3 of this Offer
to Purchase.
Do I have to sell my shares?
No. Shareholders are not required to tender any shares, and there is no minimum
or maximum number of shares that must be tendered.
What happens if I do not tender my shares?
Your shares of The Wilber Corporation common stock will remain outstanding
without a change in their terms or ownership rights. You will continue to own
the same number of shares without any adjustment, and you will continue to
receive the same dividend and voting rights on a per share basis as any other
shareholder. However, if we purchase shares as described in the Offer to
Purchase, the percentage of the outstanding shares which you own will increase
because the number of outstanding shares will be reduced and there will be other
effects. See Section 9 of this Offer to Purchase for more information on these
effects.
What if the terms of the Offer change?
In the event the Expiration Date is extended or if the terms of the Offer are
materially changed, we will generally give notice of the change, and for a
period of at least 5 business days, and under certain circumstances at least 10
business days from the notice, you will be able to change or withdraw your
tender.
Is there any brokerage commission?
No. We will purchase shares directly from each shareholder at the purchase
price. However, if you hold your shares through a broker or other nominee, you
should check to see if they will impose a charge for tendering shares on your
behalf.
Can I change or cancel my tender?
You may increase or decrease the number of shares indicated in the Letter of
Transmittal or withdraw it entirely up until 5:00 p.m., New York City Time on
the Expiration Date, which currently is May 4, 2006. Generally, after the
Expiration Date, you cannot withdraw your tender. If you desire to change or
withdraw your tender, you are responsible to make certain that a valid
withdrawal is received by the deadline. Except as discussed in Section 4 of this
Offer to Purchase, tenders are irrevocable after the May 4, 2006 deadline. If
you hold your shares through a bank, broker or other nominee, that bank, broker
or nominee may have an earlier deadline to change or withdraw your tender.
2
Is The Wilber Corporation making any recommendation about whether I should
tender my shares
Neither The Wilber Corporation nor our board of directors or officers, the
Dealer Manager/Information Agent or the Depositary makes any recommendation to
any shareholder as to whether to tender all or any shares. You must make your
own decision as to whether to tender shares and, if so, how many shares to
tender.
How can I get help in completing the Letter of Transmittal or in tendering my
shares?
You may call our dealer manager/information agent, Sandler O'Neill & Partners,
L.P. (the "Dealer Manager/Information Agent"), toll free at (800) 635-6851 to
get assistance on such matters.
How can I get additional tender offer materials?
If you need additional tender offer materials, you may call the Dealer
Manager/Information Agent, toll free at (800) 635-6851 between 9:00 a.m. and
5:00 p.m., New York City Time, Monday through Friday or at the Company's website
at "www.wilberbank.com".
3
To the Holders of Shares of Common Stock of The Wilber Corporation
SUMMARY
The Wilber Corporation is inviting its shareholders to sell shares of
its common stock back to The Wilber Corporation for cash. Set forth below are
the material terms of this Offer to Purchase:
o The Wilber Corporation will purchase up to 650,000 shares of its
common stock. See "Number of Shares; Proration" in Section 1 of this
document.
o The Wilber Corporation will purchase these shares within a price
range of $9.90 to $11.40 per share as determined by tendering
shareholders. See "Number of Shares; Proration" in Section 1 of this
document.
o Each shareholder must determine whether to sell stock, how much to
sell, and at what price the shareholder is willing to sell. If you
wish to sell your stock without specifying a price, you may check
the appropriate box on the accompanying Letter of Transmittal and
your shares will be considered to be tendered at the Purchase Price
determined by the Company, referred to in this document as the
"Purchase Price". See "Number of Shares; Proration" in Section 1 and
"Procedures for Tendering Shares" in Section 3 of this document and
in the Letter of Transmittal.
o All shares will be purchased at the same price. See "Number of
Shares; Proration" in Section 1 of this document.
o If more than 650,000 shares are tendered at or below the Purchase
Price, The Wilber Corporation will first acquire shares held by
persons who own less than 100 shares and then will acquire shares
from other tendering shareholders on a pro rata basis. See "Number
of Shares; Proration" in Section 1 and "Tenders by Holders of Fewer
Than 100 Shares" in Section 2 of this document.
o The Offer to Purchase is not conditioned upon any minimum number of
shares being tendered. The Offer to Purchase is, however, subject to
other conditions. See "Conditions of the Offer" in Section 7 of this
document.
o You must properly complete and execute the Letter of Transmittal,
which must be received by 5:00 p.m. New York City Time, on May 4,
2006 in order to sell your shares to us in this Offer to Purchase.
See "Procedure for Tendering Shares" in Section 3 of this document.
o This Offer to Purchase is scheduled to expire at 5:00 p.m. New York
City Time, on May 4, 2006. See "Number of Shares; Proration" in
Section 1 of this document.
o The Company may extend the offering period at any time in its sole
discretion and will announce any such extension in a press release.
See "Extension of Tender Period; Termination; Amendments" in Section
16 of this document.
1
o Shareholders may withdraw tendered shares at any time prior to the
expiration of the Offer to Purchase, which is currently scheduled to
occur on May 4, 2006. Tenders will then be irrevocable until May 31,
2006 when they may be withdrawn by shareholders if they have not
been accepted for payment by The Wilber Corporation. See "Withdrawal
Rights" in Section 4 of this document.
o Written notice of a withdrawal must be provided to the Depositary.
The information required and method of notification is different if
you hold your shares directly or through a broker. See "Withdrawal
Rights" in Section 4 of this document.
o Once the price is set, conditional tenders and prorations will be
considered. Then checks for all accepted tenders will be issued by
the Depositary. See "Acceptance for Payment of Shares and Payment of
Purchase Price" in Section 5 of this document.
o The Wilber Corporation expects to announce the final results of any
proration within seven trading days of the Expiration Date, as
defined in Section 1. See "Acceptance for Payment of Shares and
Payment of Purchase Price" in Section 5 of this document.
o Shareholders who don't tender their shares will increase their
percentage ownership in the Company. These shareholders will include
those executive officers and directors of The Wilber Corporation who
do not tender any of their shares. We have been advised that one
director intends to tender up to an aggregate of 120,000 of his
beneficially owned shares. The Bank, as trustee for various trusts
it administers, plans to tender up to an aggregate of 69,520 of the
shares of the Company held by such trusts. See "Purpose of the
Offer; Certain Effects of the Offer" in Section 9 and "Interest of
Directors and Officers; Transaction and Arrangements Concerning
Shares" in Section 12 of this document.
o Generally, for federal income tax purposes, shareholders will
recognize a gain or a loss on the tendered shares equal to the
difference between the cash paid by The Wilber Corporation and the
shareholder's tax basis. See "Federal Income Tax Consequences" in
Section 15 of this document.
1. NUMBER OF SHARES; PRORATION
Upon the terms and subject to the conditions described in this document
and in the Letter of Transmittal, we will purchase up to 650,000 shares of the
common stock of The Wilber Corporation that are validly tendered on or prior to
the Expiration Date of the Offer to Purchase, and not withdrawn in accordance
with Section 4, at a price, determined in the manner set forth below, not
greater than $11.40 nor less than $9.90 per share. The later of 5:00 p.m., New
York City Time, on May 4, 2006, or the latest time and date to which the Offer
to Purchase is extended pursuant to Section 16, is referred to herein as the
"Expiration Date." If this Offer to Purchase is oversubscribed as described
below, only shares tendered at or below the Purchase Price on or prior to the
Expiration Date will be eligible for proration. The proration period also
expires on the Expiration Date.
2
The Wilber Corporation will determine the Purchase Price taking into
consideration the number of shares tendered and the prices specified by
tendering shareholders. We will select the lowest Purchase Price that will
enable us to purchase 650,000 shares, or such lesser number of shares as is
validly tendered and not withdrawn, at prices not greater than $11.40 nor less
than $9.90 per share, pursuant to this Offer to Purchase. Subject to Section 16,
we may, and we reserve the right to, purchase an additional amount of shares,
not to exceed 2% of our outstanding common shares, without amending or extending
our offer. Based upon the 11,145,937 shares currently outstanding, this means
that we could elect to purchase up to an additional 222,919 shares, which, at
the maximum purchase price of $11.40 per share, would be an additional purchase
cost of $2,541,277, exclusive of associated costs and expenses. Although we will
consider making such additional purchases, we have no obligation to do so and
you should not base your decision on whether to tender your shares or the price
at which you tender shares, on the expectation that we will purchase any
additional shares. Our decision whether to purchase additional shares, and how
many of such additional shares are purchased, will depend upon our assessments,
at the time that we must make our decision regarding the purchase of any such
additional shares, of general market, economic and business conditions, and of
our strategic plans, financial condition, results of operations, liquidity and
capital resources.
This Offer to Purchase is not conditioned on any minimum number of
shares being tendered, but it is subject to certain other conditions. See
Section 7.
In accordance with Instruction 5 of the Letter of Transmittal, each
shareholder who wishes to tender shares must specify the price, not greater than
$11.40 nor less than $9.90 per share, at which the shareholder is willing to
tender the shares. As promptly as practicable following the Expiration Date, we
will determine the Purchase Price, not greater than $11.40 nor less than $9.90
per share, that we will pay for shares validly tendered and not withdrawn
pursuant to this Offer to Purchase, taking into account the number of shares
tendered and the prices specified by tendering shareholders. All shares
purchased pursuant to this Offer to Purchase will be purchased at the same
price. All shares not purchased pursuant to this Offer to Purchase, including
shares tendered at prices greater than the Purchase Price and shares not
purchased because of proration or because they were conditionally tendered and
not accepted for purchase, will be returned to the tendering shareholders at our
expense as promptly as practicable following the Expiration Date.
Upon the terms and subject to the conditions of this Offer to Purchase:
i) if 650,000 or fewer shares have been validly tendered at or below the
Purchase Price and not withdrawn on or prior to the Expiration Date, we will
purchase all the shares; and ii) if more than 650,000 shares have been validly
tendered at or below the Purchase Price and not withdrawn on or prior to the
Expiration Date, we will purchase shares in the following order of priority:
(i) first, all shares validly tendered at or below the
Purchase Price and not withdrawn on or prior to the Expiration Date by
or on behalf of any shareholder who owned beneficially, as of the close
of business on March 17, 2006 and continues to own beneficially as of
the Expiration Date, an aggregate of fewer than 100 shares and who
validly tenders all of such shares (partial and conditional tenders
will not qualify for this preference) and completes the box captioned
"Odd Lots" on the Letter of Transmittal; and
3
(ii) then, after purchase of all of the foregoing shares,
subject to the conditional tender provisions described in Section 6,
all other shares validly tendered at or below the Purchase Price and
not withdrawn on or prior to the Expiration Date on a pro rata basis,
if necessary, with appropriate adjustments to avoid purchases of
fractional shares.
Promptly after the Expiration Date, we will announce the Purchase Price
and commence payment for any shares purchased pursuant to this Offer to
Purchase. If, however, proration of tendered shares is required: (i) because of
the difficulty in determining the number of shares validly tendered; (ii) as a
result of the "odd lot" procedure described in Section 2; or (iii) as a result
of the conditional tender procedure described in Section 6, we may not be able
to announce the final proration factor or to commence payment for any shares
purchased pursuant to this Offer to Purchase until approximately seven American
Stock Exchange ("Amex(R)") trading days after the Expiration Date. If this
occurs, preliminary results of proration will be announced by press release as
promptly as practicable after the Expiration Date. Holders of shares may obtain
such preliminary information from the Dealer Manager/Information Agent.
We expressly reserve the right, in our sole discretion, at any time or
from time to time, to extend the period of time during which the Offer to
Purchase is open by giving oral or written notice of such extension to the
Depositary and making a public announcement thereof. See Section 16. There can
be no assurance, however, that we will exercise our right to extend the Offer to
Purchase.
For purposes of the Offer to Purchase, a "business day" means any day
other than a Saturday, Sunday or federal holiday and consists of the time period
from 12:01 a.m. through 12:00 midnight, New York City Time.
Copies of this Offer to Purchase and the related Letter of Transmittal
are being mailed to record holders of shares of The Wilber Corporation common
stock and will be furnished to brokers, banks and similar persons whose names,
or the names of whose nominees, appear on our shareholder list or, if
applicable, who are listed as participants in a clearing agency's security
position listing for subsequent transmittal to beneficial owners of shares.
2. TENDERS BY HOLDERS OF FEWER THAN 100 SHARES
Unless our purchase would reduce the number of our shareholders to less
than 300 or would cause the delisting of the shares on the Amex(R), all shares
validly tendered at or below the Purchase Price and not withdrawn on or prior to
the Expiration Date by or on behalf of any shareholder who owned beneficially as
of the close of business on March 17, 2006, and continues to own beneficially as
of the Expiration Date, an aggregate of fewer than 100 shares, will be accepted
for purchase before proration, if any, of other tendered shares. Partial or
conditional tenders will not qualify for this preference, and it is not
available to beneficial holders of 100 or more shares, even if the holders have
separate stock certificates for fewer than 100 shares. By accepting this Offer
to Purchase, a shareholder owning beneficially fewer than 100 shares will avoid
the payment of brokerage commissions and the applicable odd lot charge payable
in a sale of such shares in a transaction effected on a securities exchange.
4
As of March 17, 2006 there were approximately 532 holders of record of
shares of The Wilber Corporation. Approximately 90 of these holders of record
held individually fewer than 100 shares and held in the aggregate approximately
3,260 shares. Because of the large number of shares held in the names of brokers
and nominees, we are unable to estimate the number of beneficial owners of fewer
than 100 shares or the aggregate number of shares they own. Any shareholder
wishing to tender all of his or her shares pursuant to this Section 2 should
complete the box captioned "Odd Lots" on the Letter of Transmittal.
3. PROCEDURE FOR TENDERING SHARES
To tender shares validly pursuant to the Offer to Purchase, a properly
completed and duly executed Letter of Transmittal or facsimile thereof, together
with any required signature guarantees and any other documents required by the
Letter of Transmittal, must be received by the Depositary at its address set
forth on the back cover of this Offer to Purchase and either: (i) certificates
for the shares to be tendered must be received by the Depositary at such
address; or (ii) the shares must be delivered pursuant to the procedures for
book-entry transfer described below, and a confirmation of the delivery received
by the Depositary, in each case on or prior to the Expiration Date.
In accordance with Instruction 5 of the Letter of Transmittal, in order
to tender shares pursuant to this Offer to Purchase, a shareholder must indicate
in the section captioned "Price (In Dollars) Per Share At Which Shares Are Being
Tendered" on the Letter of Transmittal either: (i) the price, in multiples of
$0.10, at which the shares are being tendered; or (ii) that the shares are being
tendered at the Purchase Price determined by The Wilber Corporation in
accordance with the terms of this Offer to Purchase. For a tender of shares to
be valid, a price box, but only one price box, on each Letter of Transmittal
must be checked.
Shareholders wishing to tender shares at more than one price must
complete separate Letters of Transmittal for each price at which shares are
being tendered. The same shares cannot be tendered at more than one price.
The Depositary, Registrar and Transfer Company, will establish an
account with respect to the shares tendered at The Depository Trust Company,
which is a book-entry transfer facility, and any financial institution that is a
participant in the system of the book-entry transfer facility may make delivery
of shares by causing the book-entry transfer facility to transfer such shares
into the Depositary's account in accordance with the procedures of the
book-entry transfer facility. Although delivery of shares may be effected
through book-entry transfer, a properly completed and duly executed Letter of
Transmittal or a manually signed copy thereof, or an agent's message, as defined
below, together with any required signature guarantees and any other required
documents, must, in any case, be transmitted to and received by the Depositary
at its address set forth on the back cover of this Offer to Purchase on or prior
to the Expiration Date. Delivery of required documents to the book-entry
transfer facility in accordance with its procedures does not constitute delivery
to the Depositary and will not constitute a valid tender.
The term "agent's message" means a message transmitted by the
book-entry transfer facility to, and received by, the Depositary and forming a
part of a book-entry confirmation,
5
which states that the book-entry transfer facility has received an express
acknowledgment from the participant in the book-entry transfer facility
tendering the shares, that the participant has received and agrees to be bound
by the terms of the Letter of Transmittal and that The Wilber Corporation may
enforce the agreement against the participant.
Except as set forth below, all signatures on a Letter of Transmittal
must be guaranteed by a firm that is a member of a registered national
securities exchange or the National Association of Securities Dealers, Inc., or
by a commercial bank, a trust company, a savings bank, a savings and loan
association or a credit union which has membership in an approved signature
guarantee medallion program, each of the foregoing being referred to as an
"eligible institution". Signatures on a Letter of Transmittal need not be
guaranteed if: (i) the Letter of Transmittal is signed by the registered holder
of the shares, which, for the purposes of this Section 3 includes a participant
in the book-entry transfer facility whose name appears on a security position
listing as the holder of the shares, tendered therewith and the holder has not
completed the box entitled "Special Payment Instructions" or the box entitled
"Special Delivery Instructions" on the Letter of Transmittal; or (ii) the shares
are tendered for the account of an eligible institution. See Instructions 1 and
6 of the Letter of Transmittal.
Guaranteed Delivery. If a shareholder desires to tender shares under
the tender offer and: i) the shareholder's share certificates are not
immediately available; ii) the shareholder cannot deliver the share certificates
to the Depositary before the Expiration Date; iii) the shareholder cannot
complete the procedure for book-entry transfer on a timely basis; or iv) time
will not permit all required documents to reach the Depositary before the
Expiration Date, the shareholder may nevertheless tender the shares, provided
that the shareholder satisfies all of the following conditions:
o the shareholder makes the tender by or through an eligible
guarantor institution;
o the Depositary receives by hand, mail, overnight courier or
facsimile transmission, before the Expiration Date, a properly completed and
duly executed notice of guaranteed delivery in the form we have provided,
specifying the price at which the shareholder is tendering shares, including
(where required) a guarantee by an eligible guarantor institution in the form
set forth in such notice of guaranteed delivery; and
o the Depositary receives the share certificates, in proper form for
transfer, or confirmation of book-entry transfer of the shares into the
Depositary's account at the book-entry transfer facility, together with a
properly completed and duly executed Letter of Transmittal, or a manually signed
facsimile thereof, and including any required signature guarantees, or an
agent's message, and any other documents required by the Letter of Transmittal,
within three Amex(R)trading days after the date of receipt by the Depositary of
the notice of guaranteed delivery
The method of delivery of shares and all other required documents is at
the option and risk of the tendering shareholder. If delivery is by mail,
registered mail with return receipt requested, properly insured, is recommended.
In all cases sufficient time should be allowed to assure timely delivery to the
Depositary.
6
To prevent United States federal income tax backup withholding equal to
28% of the gross payments made pursuant to the Offer to Purchase, each tendering
shareholder must provide the Depositary with the shareholder's correct taxpayer
identification number and certain other information by properly completing the
substitute Form W-9 included in the Letter of Transmittal. Foreign shareholders,
as defined in Section 15, must submit a properly completed Form W-8, which may
be obtained from the Depositary, in order to prevent backup withholding. In
general, backup withholding does not apply to corporations or to foreign
shareholders subject to 30%, or lower treaty rate, withholding on gross payments
received pursuant to the Offer to Purchase, as discussed in Section 15. For a
discussion of certain federal income tax consequences to tendering shareholders,
see Section 15. Each shareholder is urged to consult with his or her own tax
advisor regarding his, her or its qualification for exemption from backup
withholding and the procedure for obtaining any applicable exemption.
It is a violation of Rule 14e-4 promulgated under the Securities
Exchange Act of 1934 ("Exchange Act"), as amended, for a person to tender shares
for his or her own account unless the person so tendering: (i) has a net long
position equal to or greater than the amount of (x) shares tendered or (y) other
securities immediately convertible into, exercisable or exchangeable for the
amount of shares tendered and will acquire such shares for tender by conversion,
exercise or exchange of such other securities; and (ii) will cause such shares
to be delivered in accordance with the terms of the Offer to Purchase. Rule
14e-4 provides a similar restriction applicable to the tender of shares on
behalf of another person. The tender of shares pursuant to any one of the
procedures described above will constitute the tendering shareholder's
representation and warranty that: (1) the shareholder has a net long position in
the shares being tendered within the meaning of Rule 14e-4 promulgated under the
Exchange Act; and (2) the tender of such shares complies with Rule 14e-4. Our
acceptance for payment of shares tendered pursuant to the Offer to Purchase will
constitute a binding agreement between the tendering shareholder and us upon the
terms and subject to the conditions of the Offer to Purchase.
All questions as to the Purchase Price, the form of documents, the
number of shares to be accepted and the validity, eligibility, including time of
receipt, and acceptance for payment of any tender of shares will be determined
by us, in our sole discretion, which determination shall be final and binding on
all parties. We reserve the absolute right to reject any or all tenders of
shares that we determine are not in proper form or the acceptance for payment of
or payment for shares that may, in the opinion of our counsel, be unlawful. We
also reserve the absolute right to waive any defect or irregularity in any
tender of any particular shares. None of The Wilber Corporation, the Dealer
Manager/Information Agent, the Depositary or any other person is or will be
under any duty to give notice of any defect or irregularity in tenders, nor
shall any of them incur any liability for failure to give any such notice.
Certificates for shares, together with a properly completed Letter of
Transmittal or, in the case of a book-entry transfer, an agent's message, and
any other documents required by the Letter of Transmittal, must be delivered to
the Depositary and not to The Wilber Corporation or to a branch office of Wilber
National Bank. Any such documents delivered to us will not be forwarded to the
Depositary and therefore will not be deemed to be properly tendered.
7
4. WITHDRAWAL RIGHTS
Tenders of shares made pursuant to the Offer to Purchase may be
withdrawn at any time prior to the Expiration Date. Thereafter, tenders are
irrevocable, except that they may be withdrawn after 12:00 midnight, New York
City Time, on May 31, 2006 unless previously accepted for payment by us as
provided in this Offer to Purchase. If we extend the period of time during which
the Offer to Purchase is open, are delayed in purchasing shares or are unable to
purchase shares pursuant to the Offer to Purchase for any reason, then, without
prejudice to our rights under the Offer to Purchase, the Depositary may, on our
behalf, retain all shares tendered, and the shares may not be withdrawn except
as otherwise provided in this Section 4, and subject to Rule 13e-4(f)(5) under
the Exchange Act, which provides that the issuer making the tender offer shall
either pay the consideration offered, or return the tendered securities promptly
after the termination or withdrawal of the tender offer.
Withdrawal of Shares Held in Physical Form. For a withdrawal to be
effective, a shareholder of shares held in physical form must provide a written,
telegraphic, or facsimile transmission notice of withdrawal to the Depositary at
its address set forth on the back cover page of this Offer to Purchase before
the Expiration Date, which notice must contain: (i) the name of the person who
tendered the shares; (ii) a description of the shares to be withdrawn; (iii) the
certificate numbers shown on the particular certificates evidencing the shares;
(iv) the signature of the shareholder executed in the same manner as the
original signature on the Letter of Transmittal, including any signature
guarantee, if such original signature was guaranteed; and (v) if the shares are
held by a new beneficial owner, evidence satisfactory to The Wilber Corporation
that the person withdrawing the tender has succeeded to the beneficial ownership
of the shares. A purported notice of withdrawal which lacks any of the required
information will not be an effective withdrawal of a tender previously made.
Withdrawal of Shares Held with the Book-Entry Transfer Facility. For a
withdrawal to be effective, a shareholder of shares held with the book-entry
transfer facility must: (i) call his or her broker and instruct the broker to
withdraw the tender of shares by debiting the Depositary's account at the
book-entry transfer facility for all shares to be withdrawn; and (ii) instruct
the broker to provide a written, telegraphic, or facsimile transmission notice
of withdrawal to the Depositary on or before the Expiration Date. The notice of
withdrawal shall contain: (a) the name of the person who tendered the shares;
(b) a description of the shares to be withdrawn; and (c) if the shares are held
by a new beneficial owner, evidence satisfactory to us that the person
withdrawing the tender has succeeded to the beneficial ownership of the shares.
A purported notice of withdrawal which lacks any of the required information
will not be an effective withdrawal of a tender previously made.
Any permitted withdrawals of tenders of shares may not be rescinded,
and any shares so withdrawn will thereafter be deemed not validly tendered for
purposes of the Offer to Purchase; provided, however, that withdrawn shares may
be re-tendered by following the tendering procedures prior to the Expiration
Date.
All questions as to the form and validity, including time of receipt,
of any notice of withdrawal will be determined by us, in our sole discretion,
which determination shall be final and binding on all parties. None of the
Company, the Dealer Manager/Information Agent, the
8
Depositary or any other person is or will be under any duty to give notification
of any defect or irregularity in any notice of withdrawal or incur any liability
for failure to give any such notification.
5. ACCEPTANCE FOR PAYMENT OF SHARES AND PAYMENT OF PURCHASE PRICE
Upon the terms and subject to the conditions of the Offer to Purchase,
and promptly after the Expiration Date, we will determine the Purchase Price,
taking into consideration the number of shares tendered and the prices specified
by tendering shareholders, announce the Purchase Price and, subject to the
proration and conditional tender provisions of the Offer to Purchase, accept for
payment and pay the Purchase Price for shares validly tendered and not withdrawn
at or below the Purchase Price. Payment for all shares validly tendered on or
prior to the Expiration Date and accepted for payment pursuant to the Offer to
Purchase will be made by the Depositary by check as promptly as practicable.
Payment for shares accepted pursuant to the Offer to Purchase will be made only
after timely receipt by the Depositary of: (i) certificates for such shares or
confirmation of a book-entry transfer of such shares into the Depositary's
account at the book-entry transfer facility; (ii) a properly completed and duly
executed Letter of Transmittal or a manually signed copy thereof, with any
required signature guarantees, or in the case of a book-entry delivery, an
agent's message; and (iii) any other required documents.
For purposes of the Offer to Purchase, we shall be deemed to have
accepted for payment, and thereby purchased, subject to proration and
conditional tenders, shares that are validly tendered and not withdrawn as, if
and when we give oral or written notice to the Depositary of our acceptance for
payment of the shares. In the event of proration, we will determine the
proration factor and pay for those tendered shares accepted for payment as soon
as practicable after the Expiration Date. However, we do not expect to be able
to announce the final results of any such proration until approximately seven
Amex(R) trading days after the Expiration Date. We will pay for shares that we
have purchased pursuant to the Offer to Purchase by depositing the aggregate
Purchase Price therefor with the Depositary. The Depositary will act as agent
for tendering shareholders for the purpose of receiving payment from us and
transmitting payment to tendering shareholders. Under no circumstances will
interest be paid on amounts to be paid to tendering shareholders, regardless of
any delay in making such payment.
Certificates for all shares not purchased pursuant to this Offer to
Purchase will be returned, or, in the case of shares tendered by book-entry
transfer, the shares will be credited to an account maintained with the
book-entry transfer facility by the participant therein who so delivered the
shares, as promptly as practicable following the Expiration Date without expense
to the tendering shareholder.
Payment for shares may be delayed in the event of difficulty in
determining the number of shares properly tendered or if proration is required.
See Section 1. In addition, if certain events occur, we may not be obligated to
purchase shares. See Section 7.
We will pay or cause to be paid any stock transfer taxes with respect
to the sale and transfer of any shares to us or our order pursuant to the Offer
to Purchase. If, however, payment of the Purchase Price is to be made to, or a
portion of the shares delivered, whether in certificated form or by book-entry,
but not tendered or not purchased are to be registered in the name of, any
9
person other than the registered holder, or if tendered shares are registered in
the name of any person other than the person signing the Letter of Transmittal,
unless the person is signing in a representative or fiduciary capacity, the
amount of any stock transfer taxes, whether imposed on the registered holder,
such other person or otherwise, payable on account of the transfer to the person
will be deducted from the Purchase Price unless satisfactory evidence of the
payment of such taxes, or exemption therefrom, is submitted. See Instruction 7
to the Letter of Transmittal.
Any tendering shareholder or other payee who fails to complete fully
and sign the substitute Form W-9 included in the Letter of Transmittal or, in
the case of a foreign individual, a Form W-8, may be subject to required federal
income tax withholding of 28% of the gross proceeds paid to such shareholder or
other payee. See Section 3.
6. CONDITIONAL TENDER OF SHARES
As set forth in Section 1, we may prorate the number of shares
purchased pursuant to the Offer to Purchase. As discussed in Section 15, the
number of shares to be purchased from a particular shareholder might affect the
tax treatment of the purchase for the shareholder and the shareholder's decision
whether to tender. Each shareholder is urged to consult with his or her own tax
advisor. Accordingly, a shareholder may tender shares subject to the condition
that a specified minimum number of the shareholder's shares tendered pursuant to
a Letter of Transmittal must be purchased if any shares so tendered are
purchased. Any shareholder desiring to make a conditional tender must so
indicate in the box captioned "Conditional Tender" in the Letter of Transmittal.
Any tendering shareholders wishing to make a conditional tender must
calculate and indicate in the Letter of Transmittal the minimum number of shares
to be tendered. If the effect of accepting tenders on a pro rata basis would be
to reduce the number of shares to be purchased from any shareholder, tendered
pursuant to a Letter of Transmittal, below the minimum number so specified, the
tender will automatically be regarded as withdrawn, except as provided in the
next paragraph, and all shares tendered by the shareholder pursuant to the
applicable Letter of Transmittal will be returned as promptly as practicable
thereafter.
If conditional tenders that would otherwise be so regarded as withdrawn
would cause the total number of shares to be purchased to fall below 650,000,
then, to the extent feasible, we will select enough conditional tenders that
would otherwise have been so withdrawn to permit us to purchase 650,000 shares.
We will select by lot among these conditional tenders and will limit our
purchase in each case to the minimum number of shares designated by the
shareholder in the applicable Letter of Transmittal as a condition to his or her
tender.
7. CONDITIONS OF THE OFFER TO PURCHASE
Notwithstanding any other provision of the Offer to Purchase, we will
not be required to accept for payment or pay for any shares tendered, and,
subject to the requirements of the Exchange Act for prompt payment for or return
of shares tendered, we may terminate or amend and may postpone the acceptance
for payment of shares tendered, if at any time on or before the Expiration Date,
any of the following shall have occurred:
10
(i) there shall have been threatened, instituted or pending
any action or proceeding by any government or governmental, regulatory
or administrative agency or authority or tribunal or any other person,
domestic or foreign, or before any court, authority, agency or tribunal
that: (a) challenges the acquisition of shares pursuant to the Offer to
Purchase or otherwise in any manner relates to or affects the Offer to
Purchase; or (b) in the reasonable judgment of The Wilber Corporation,
could materially and adversely affect the business, condition,
financial or other, income, operations or prospects of The Wilber
Corporation and/or any of our subsidiaries, taken as a whole, or
otherwise materially impair in any way the contemplated future conduct
of the business of The Wilber Corporation and/or any of our
subsidiaries or materially impair the Offer to Purchase's contemplated
benefits to us;
(ii) there shall have been any action threatened, pending or
taken, or approval withheld, or any statute, rule, regulation,
judgment, order or injunction threatened, proposed, sought,
promulgated, enacted, entered, amended, enforced or deemed to be
applicable to the Offer to Purchase or The Wilber Corporation or any of
our subsidiaries, by any legislative body, court, authority, agency or
tribunal which, in our sole judgment, would or might directly or
indirectly: (a) make the acceptance for payment of, or payment for,
some or all of the shares illegal or otherwise restrict or prohibit
consummation of the Offer to Purchase; (b) delay or restrict the
ability of The Wilber Corporation, or render us unable, to accept for
payment or pay for some or all of the shares; (c) materially impair the
contemplated benefits of the Offer to Purchase to us; or (d) materially
affect the business, condition, financial or other, income, operations
or prospects of The Wilber Corporation and/or any of our subsidiaries,
taken as a whole, or otherwise materially impair in any way the
contemplated future conduct of the business of The Wilber Corporation
and/or any of our subsidiaries;
(iii) it shall have been publicly disclosed or we shall have
learned that: (a) any person or "group," within the meaning of Section
13(d)(3) of the Exchange Act, has acquired or proposes to acquire
beneficial ownership of more than 5% of the outstanding shares whether
through the acquisition of stock, the formation of a group, the grant
of any option or right, or otherwise, other than as disclosed in a
Schedule 13D or 13G on file with the Securities and Exchange Commission
("SEC") on May 4, 2006; or (b) any person or group that on or prior to
May 4, 2006 had filed a Schedule 13D or 13G with the SEC thereafter
shall have acquired or shall propose to acquire, whether through the
acquisition of stock, the formation of a group, the grant of any option
or right, or otherwise, beneficial ownership of additional shares
representing 2% or more of the outstanding shares;
(iv) there shall have occurred: (a) any general suspension of
trading in, or limitation on prices for, securities on any national
securities exchange or in the over-the-counter market; (b) any
significant decline in the market price of shares of the common stock
of The Wilber Corporation or in the general level of market prices of
equity securities in the United States or abroad; (c) any change in the
general political, market, economic or financial condition in the
United States or abroad that could have a material adverse effect on
our business, condition, financial or otherwise, income, operations,
prospects or ability to obtain financing generally or the trading in
the shares; (d) the
11
declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States or any limitation on, or any
event which, in our reasonable judgment, might affect the extension of
credit by lending institutions in the United States; (e) the
commencement of a war, armed hostilities, acts of terrorism or other
calamity directly or indirectly involving the United States; or (f) in
the case of any of the foregoing existing at the time of the
commencement of the Offer to Purchase, in our reasonable judgment, a
material acceleration or worsening thereof;
(v) a tender or exchange offer with respect to some or all of
our shares of common stock, other than the Offer to Purchase, or a
merger, acquisition or other business combination proposal for The
Wilber Corporation, shall have been proposed, announced or made by
another person or group, within the meaning of Section 13(d)(3) of the
Exchange Act; or
(vi) there shall have occurred any event or events that has
resulted, or may in the reasonable judgment of The Wilber Corporation
result, directly or indirectly, in an actual or threatened change in
the business, condition, financial or other, income, operations, stock
ownership or prospects of The Wilber Corporation and our subsidiaries;
and, in the reasonable judgment of The Wilber Corporation, such event or events
make it undesirable or inadvisable to proceed with the Offer to Purchase or with
such acceptance for payment.
The foregoing conditions are for the reasonable benefit of The Wilber
Corporation and may be asserted by us regardless of the circumstances, including
any action or inaction by us, giving rise to any of these conditions, and any of
these conditions may be waived by us, in whole or in part, at any time and from
time to time on or prior to the Expiration Date, in our reasonable discretion.
The failure by The Wilber Corporation at any time to exercise any of the
foregoing rights shall not be deemed a waiver of the right and each of these
rights shall be deemed an ongoing right which may be asserted at any time and
from time to time. Any determination by us concerning the events described above
will be final and binding on all parties.
Acceptance of shares validly tendered in the Offer to Purchase is
subject to the condition that, as of the Expiration Date, and after giving pro
forma effect to the acceptance of shares validly tendered, The Wilber
Corporation would continue to have at least 300 shareholders and our shares
would remain listed for quotation on the Amex(R). This condition may not be
waived.
The Exchange Act requires that all conditions to the Offer to Purchase
must be satisfied or waived before the Expiration Date.
8. PRICE RANGE OF SHARES; DIVIDENDS
Until February 11, 2004, the Company's common stock was inactively
traded on the NASDAQ Over-the-Counter Bulletin Board under the symbol "WLB.OB".
On February 12, 2004, the Company's common stock began trading on the Amex(R)
under the symbol "GIW". The following table sets forth the high and low sales
prices, and dividends declared, for the shares as reported on the NASDAQ
Over-the-Counter Bulletin Board and Amex(R) for the periods indicated. Our
fiscal year end is December 31.
12
Dividends
High Low Declared
---------- ---------- ----------
Fiscal 2004
1st Quarter $15.50 $12.65 $0.0950
2nd Quarter $13.65 $12.00 $0.0950
3rd Quarter $12.80 $12.00 $0.0950
4th Quarter $12.64 $11.64 $0.0950
Fiscal 2005
1st Quarter $12.90 $11.94 $0.0950
2nd Quarter $12.45 $12.00 $0.0950
3rd Quarter $12.27 $11.80 $0.0950
4th Quarter $12.00 $10.84 $0.0950
Fiscal 2006
1st Quarter (through March 17, 2006) $10.85 $9.90 $0.0950
On March 17, 2006, the closing price of our shares on the Amex(R) was
$10.00 per share. Shareholders are urged to obtain current market quotations for
the shares before deciding whether to tender their shares.
9. PURPOSE OF THE OFFER TO PURCHASE; CERTAIN EFFECTS OF THE OFFER TO
PURCHASE
We believe that the purchase of the Company's shares is an attractive
use of a portion of The Wilber Corporation's available capital and is consistent
with our long-term goal of increasing shareholder value. We believe we have
adequate sources of capital to complete the share repurchase, while operating
our business and pursuing strategic opportunities.
Through retained earnings accumulated from profitable operations, the
Company has built a capital base that exceeds all applicable regulatory
standards, supports our banking business, and has permitted the Company to pay a
consistent quarterly dividend. In addition to dividends, we have taken other
steps to improve performance and enhance the value of our franchise, including
branch acquisitions, diversification of the Bank's lending business and periodic
share repurchases. Still, the Company's capital remains high in proportion to
its earning assets, which affects our ability to produce desired returns for our
shareholders. Our management and board of directors has concluded that the
purchase of shares pursuant to the Offer to Purchase is an appropriate means of
reducing these ratios and improving returns for shareholders, consistent with
safe and sound banking practices.
The Offer to Purchase is designed to restructure our balance sheet in
order to increase return on equity and earnings per share by reducing the amount
of equity and shares outstanding.
13
Based upon the current market price of our shares, we believe that the purchase
of shares is an attractive use of funds. Following the purchase of the shares,
we believe funds provided by earnings, combined with other sources of liquidity,
will be fully adequate to meet our funding needs for the foreseeable future.
Upon completion of the Offer to Purchase, we expect that the Company and the
Bank will continue to maintain the highest regulatory capital standards.
The Offer to Purchase will enable shareholders who are considering the
sale of all or a portion of their shares to determine the price or prices, not
greater than $11.40 nor less than $9.90 per share, at which they are willing to
sell their shares, and, if any shares are sold pursuant to the Offer to
Purchase, to sell those shares for cash without the usual transaction costs
associated with open-market sales. The Offer to Purchase may also give
shareholders the opportunity to sell shares at prices greater than market prices
prevailing prior to the announcement of the Offer to Purchase. See Section 8. In
addition, tendering shareholders owning beneficially fewer than 100 shares, will
avoid the payment of brokerage commissions and any applicable odd lot reductions
from the market price typically charged by brokers for executing odd lot trades.
Shareholders who do not tender or only partially tender their shares
pursuant to the Offer to Purchase, and shareholders who retain an equity
interest in the Company as a result of a proration, as described in Section 1,
will continue as owners of the Company, with the attendant risks and rewards of
an investment in common stock. Shareholders will retain the right to receive the
payment of any dividends declared with respect to the tendered shares until such
shares are accepted for payment. As noted above, The Wilber Corporation,
following completion of the Offer to Purchase, will maintain the highest
regulatory capital rating.
Shareholders who determine not to accept the Offer to Purchase will
realize a proportionate increase in their relative equity interest in The Wilber
Corporation and, thus, in The Wilber Corporation's earnings and assets, subject
to any risks resulting from our purchase of shares and our ability to issue
additional equity securities in the future. In addition, to the extent the
purchase of shares pursuant to the Offer to Purchase results in a reduction of
the number of shareholders of record, our costs for shareholder related services
may be reduced.
If fewer than 650,000 shares are purchased pursuant to the Offer to
Purchase, we may repurchase the remainder of the shares on the open market, in
privately negotiated transactions or otherwise. In the future, we may determine
to purchase additional shares on the open market, in privately negotiated
transactions, through one or more tender offers or otherwise. Any purchases may
be on the same terms as, or on terms which are more or less favorable to
shareholders than, the terms of the Offer to Purchase. Rule 13e-4 under the
Exchange Act, however, prohibits us and our affiliates from purchasing any
shares, other than pursuant to the Offer to Purchase, until at least ten (10)
business days after the Expiration Date. Any future purchases of shares by The
Wilber Corporation would depend on many factors, including the market price of
the shares, our business and financial position, regulatory requirements, and
general economic and market conditions.
Shares we acquire pursuant to the Offer to Purchase will be restored to
the status of authorized and unissued shares, or placed in The Wilber
Corporation's treasury. These shares will be available for us to issue without
further shareholder action, except as required by
14
applicable law or the rules of the Amex(R) or any other securities exchange on
which the shares are listed, for purposes including, but not limited to, the
acquisition of other businesses, the raising of additional capital for use in
our business and the satisfaction of obligations under existing or future
employee benefit plans. We have no current plans for reissuance of the shares
repurchased pursuant to the Offer to Purchase.
Neither The Wilber Corporation nor our board of directors makes any
recommendation to any shareholder as to whether to tender all or any shares. The
Bank, in the exercise of its fiduciary duties as the trustee of various trusts
it administers which hold stock of the Company, may make such recommendations.
Each shareholder must make his or her own decision whether to tender shares and,
if so, how many shares to tender and at what price. Directors, officers and
employees of The Wilber Corporation who own shares may participate in the Offer
to Purchase on the same basis as our other shareholders. We have been advised
that one director of The Wilber Corporation intends to tender up to an aggregate
of 120,000 of his beneficially owned shares pursuant to the Offer to Purchase.
The Bank, as trustee for various trusts it administers, plans to tender up to an
aggregate of 69,520 of the shares of the Company held by such trusts.
10. INFORMATION CONCERNING THE WILBER CORPORATION
General.
The Wilber Corporation is a New York corporation originally
incorporated in 1928. The Company held and disposed of various real estate
assets until 1974. In 1974, the Company and its real estate assets were sold to
the Wilber National Bank, a national bank chartered in 1874. In 1983, under a
plan of reorganization, the Company was re-capitalized, acquired 100% of the
voting stock of the Bank, and registered as a bank holding company with the
Board of Governors of the Federal Reserve System ("Federal Reserve").
In February, 2004, the Company registered its common stock with the SEC
and listed it on the Amex(R) under the symbol "GIW". As of March 17, 2006 there
were approximately 532 holders of record of shares of The Wilber Corporation
common stock. The Company is subject to the information, reporting, proxy
solicitation, insider trading, and other rules contained in the Exchange Act and
the regulations of the SEC thereunder, as well as Amex(R) rules and standards.
The business of the Company consists primarily of the ownership,
supervision and control of the Bank. The Bank is chartered by the Office of the
Comptroller of the Currency ("OCC"), and its deposits are insured up to the
applicable limits by the Federal Deposit Insurance Corporation. The Company is
subject to regulation and supervision by the Federal Reserve. The Company,
through the Bank and the Bank's subsidiaries, offers a full range of commercial
and consumer financial products, including business, municipal, mortgage and
consumer loans, deposits, trust and investment services, and insurance.
Our principal business is to act as a financial intermediary in the
communities we serve by obtaining funds through customer deposits and
institutional borrowings, lending the proceeds of those funds to our customers,
and investing excess funds in debt securities and short-term liquid investments.
Our funding base consists of deposits derived principally from the central New
York communities which we serve. To a lesser extent, we borrow funds from
institutional
15
sources, principally the Federal Home Loan Bank of New York. We target our
lending activities to consumers and municipalities in the immediate geographic
areas and to small and mid-sized businesses in the immediate geographic areas
and broader statewide region. We serve our customers through twenty (20) full
service branch banking offices located in Otsego, Delaware, Schoharie, Chenango,
Ulster, and Broome counties, New York, an ATM network, and electronic/Internet
banking services. In addition, we operate an insurance sales office located in
Walton, New York and representative loan production banking offices in Syracuse
and Kingston, New York. The Bank's main office is located at 245 Main Street,
Oneonta, New York 13820.
Our investment portfolio primarily consists of U.S. Treasury, U.S.
Government agency, and U.S. Government sponsored entity obligations and
municipal, mortgage-backed and high quality corporate debt instruments. Through
our Trust and Investment Division, we provide personal trust, agency, estate
administration and retirement planning services for individuals, as well as
custodial and investment management services to institutions. We also offer
stocks, bonds and mutual funds through a third party broker-dealer firm and
through Mang-Wilber, LLC, a subsidiary of the Bank, we offer a full line of
life, health and property and casualty insurance products. Our website address
is www.wilberbank.com.
At December 31, 2005, The Wilber Corporation had $752,728,000 in
assets, $403,665,000 in loans, $604,958,000 in deposits, $67,717,000 in
stockholders equity and an equity to assets ratio of 9%. The Bank qualifies as
"well capitalized" under applicable regulatory measures. During 2005, our return
on average equity was 11.40% and our dividend payout ratio was 55.10%.
16
Summary Historical and Pro Forma Financial Information.
The following summary historical consolidated financial data has been
derived from the audited consolidated financial statements of The Wilber
Corporation as of and for the year ended December 31, 2005. The data should be
read in conjunction with the consolidated financial statements and notes thereto
included in The Wilber Corporation's Annual Report on Form 10-K for the year
ended December 31, 2005. Copies of this report may be obtained as described in
Section 18 of this Offer to Purchase. The pro forma adjusted information shows
the effect of consummation of the Offer to Purchase at $9.90 per share and
$11.40 per share on the balance sheet and income statement categories of
information and the selected financial ratios contained in the table.
Pro Forma Adjusted
----------------------------
Historical December 31, 2005
------------- ----------------------------
December 31, $9.90 $11.40
dollars in thousands except share and per share data 2005 Per Share Per Share
--------------------------------------------------------------------------------------------------
Balance Sheet Data:
Assets
Total Cash and Cash Equivalents $ 18,417 $ 11,669 $ 10,663
Securities 296,831 296,831 296,831
Loans, Net 397,025 397,025 397,025
Other Assets 40,455 40,455 40,455
------------ ------------ ------------
Total Assets $ 752,728 $ 745,980 $ 744,974
============ ============ ============
Liabilities and Stockholders' Equity
Deposits 604,958 604,958 604,958
Borrowings 71,829 71,829 71,829
Other Liabilities 8,224 8,224 8,224
------------ ------------ ------------
Total Liabilities 685,011 685,011 685,011
------------ ------------ ------------
Stockholders' Equity:
Common Stock, $.01 Par Value, 16,000,000
Shares Authorized 140 140 140
Additional Paid in Capital 4,224 4,224 4,224
Retained Earnings 86,900 86,633 86,602
Accumulated Other Comprehensive (Loss) Income (2,409) (2,409) (2,409)
Treasury Stock at Cost (21,138) (27,619) (28,594)
------------ ------------ ------------
Total Stockholders' Equity 67,717 60,969 59,963
------------ ------------ ------------
Total Liabilities and Stockholders' Equity $ 752,728 $ 745,980 $ 744,974
============ ============ ============
Shares outstanding 11,145,937 10,495,937 10,495,937
17
Pro Forma Adjusted
Historical December 31, 2005
------------ -----------------------------
December 31, $9.90 $11.40
dollars in thousands except share and per share data 2005 Per Share Per Share
----------------------------------------------------------------------------------------------------------
Income Statement Data:
Total Interest and Dividend Income $ 40,310 $ 40,019 $ 39,977
Total Interest Expense 14,930 14,930 14,930
------------ ------------ ------------
Net Interest Income 25,380 25,089 25,047
Provisions for Loan Losses 1,580 1,580 1,580
------------ ------------ ------------
Net Interest Income After Provision for Loan Losses 23,800 23,509 23,467
Total Non Interest Income 5,510 5,510 5,510
Total Non Interest Expense 18,851 18,920 18,920
------------ ------------ ------------
Income Before Taxes 10,459 10,099 10,057
Income Taxes (2,715) (2,622) (2,611)
------------ ------------ ------------
Net Income $ 7,744 $ 7,477 $ 7,446
============ ============ ============
Selected Financial Ratios:
Basic earnings per share $ 0.69 $ 0.71 $ 0.71
Return on average equity 11.40% 12.26% 12.42%
Book value per share $ 6.08 $ 5.81 $ 5.71
Weighted Average Shares Outstanding 11,169,730 10,519,730 10,519,730
Notes to Unaudited Pro Forma Financial Information (dollars in thousands except
share and per share data)
1. The pro forma financial information reflects the repurchase of 650,000
shares at $9.90 and $11.40 per share, as indicated. The pro forma
adjusted balance sheet information assumes that such shares were
purchased at the applicable price on December 31, 2005. The pro forma
adjusted income statement information assumes that such shares were
purchased at the applicable price on January 1, 2005.
2. The Company has assumed that the funds used to purchase the shares
would reduce its Federal Funds sold position, an earning asset. For
the purposes of the pro forma adjusted income statement data, the
Company assumed a 4.50% interest rate on the funds used to purchase
the shares.
3. The Company will incur certain costs in connection with this Offer to
Purchase. The estimated costs are shown below and included in the pro
forma adjusted income statement information above:
Legal fees $ 30
Dealer Manager / Information Agent fees 10
Depositary fees 19
SEC filing fees 2
Printing, Mailing and Other Expenses 8
------
$ 69
18
11. SOURCE AND AMOUNT OF FUNDS
Assuming that we purchase the maximum of 650,000 shares pursuant to
this Offer to Purchase at the highest price of $11.40 per share, the total
amount required by us to purchase these shares will be $7,410,000, exclusive of
fees and other expenses. We intend to fund the purchase with proceeds of a
dividend paid by the Bank to the Company, which may require OCC approval if we
purchase additional shares in an amount up to 2% of our outstanding shares.
Based upon the OCC regulations governing the payment of dividends by national
banks, the Company believes that the OCC would approve such payment.
Alternatively, depending on market, general economic, business and
strategic considerations, we may decide to fund all or part of the purchase of
tendered shares through the issuance of trust preferred securities. In general,
in a trust preferred securities transaction: i) the Company would form a
statutory trust, which would issue the trust preferred securities to an
investor, typically a special purpose pool vehicle established by an investment
bank or financial advisory firm; ii) the trust would use the sale proceeds to
purchase a debenture from the Company; iii) the trust would use the payments by
the Company on the debenture to pay the principal and interest on the trust
preferred securities; and iv) the Company would guarantee these payments. In
recent years, the issuance of trust preferred securities has become a common
method of balance sheet management and transaction financing for bank holding
companies and there has been an abundant supply of capital and purchasers
available in the equity markets for the purchase of these securities. However,
the Company cannot and does not make any assurances that such capital or
purchasers would exist or be available should it decide to issue trust preferred
securities to fund its purchase of tendered shares. The Company's issuance of
trust preferred securities would require the approval of the Federal Reserve.
Based upon the Federal Reserve's supervisory policies governing the issuance of
trust preferred securities by bank holding companies, the Company believes that
the Federal Reserve would approve its issuance of such securities.
12. INTEREST OF DIRECTORS AND OFFICERS; TRANSACTIONS AND ARRANGEMENTS
CONCERNING SHARES
As of March 17, 2006, The Wilber Corporation had 11,145,937 shares
issued and outstanding. The 650,000 shares that we are offering to purchase
represent approximately 5.83% of the Company's outstanding shares. As of March
17, 2006, our directors and executive officers as a group beneficially owned an
aggregate of 4,038,811 shares. Directors, officers and employees of The Wilber
Corporation who own shares may participate in the Offer to Purchase on the same
basis as our other shareholders. We have been advised that one of our directors
intends to tender a total of up to 120,000 beneficially owned shares pursuant to
the Offer to Purchase. The Bank, as trustee for various trusts it administers,
plans to tender up to an aggregate of 69,520 of the shares of the Company held
by such trusts.
Assuming we purchase the maximum of 650,000 shares pursuant to the
Offer to Purchase, our executive officers and directors as a group would own
beneficially approximately 38.48% of the Company's outstanding shares, without
giving effect to any shares they may tender that are accepted for payment.
Pursuant to the terms of a trust established under Florida
19
law for tax planning purposes by Brian R. Wright, Chairman of the Board of the
Company, on February 28, 2006, legal title to the shares of the Company's common
stock held in the trust was transferred from the Bank to Mr. Wright. Except for
this transaction, neither The Wilber Corporation, nor any subsidiary of The
Wilber Corporation nor, to the best of our knowledge, any of The Wilber
Corporation's directors and executive officers, nor any affiliate of any of the
foregoing, had any transactions involving the shares during the 60 days prior to
the date hereof.
Except as otherwise described herein, neither The Wilber Corporation
nor, to the best of our knowledge, any of our affiliates, directors or executive
officers, or any of the directors or executive officers of any of its
affiliates, is a party to any contract, arrangement, understanding or
relationship with any other person relating, directly or indirectly, to the
Offer to Purchase with respect to any securities of The Wilber Corporation
including, but not limited to, any contract, arrangement, understanding or
relationship concerning the transfer or the voting of any such securities, joint
ventures, loan or option arrangements, puts or calls, guarantees of loans,
guaranties against loss or the giving or withholding of proxies, consents or
authorizations. Except as disclosed in this Offer to Purchase, The Wilber
Corporation, its directors and executive officers have no current plans or
proposals which relate to or would result in:
o the acquisition by any person of additional securities of The Wilber
Corporation or the disposition of securities of The Wilber
Corporation;
o an extraordinary corporate transaction, such as a merger,
reorganization or liquidation involving The Wilber Corporation or
any of the Company's subsidiaries;
o a purchase, sale or transfer of a material amount of assets of The
Wilber Corporation or any of our subsidiaries;
o any change in present board of directors or management of The Wilber
Corporation other than the resignation of director Richard E. Keene
who has reached the mandatory retirement age of 70 pursuant to the
Company's bylaws and the election at the Company's 2006 Annual
Meeting of nominee Thomas Davis as his successor, to serve for a
three year term expiring on the date of the 2009 Annual Meeting.
o any material change in the present dividend rate or policy, or
indebtedness or capitalization of The Wilber Corporation;
o any other material change in Company's corporate structure or
business;
o any change in our charter or bylaws or any actions which may impede
the acquisition of control of The Wilber Corporation by any person;
o a class of equity security of The Wilber Corporation being delisted
from a national securities exchange;
o a class of equity securities of The Wilber Corporation becoming
eligible for termination of registration pursuant to Section
12(g)(4) of the Exchange Act; or
o the suspension of our obligation to file reports pursuant to Section
15(d) of the Exchange Act. See Section 10.
20
13. EFFECTS OF THE OFFER TO PURCHASE ON THE MARKET FOR SHARES; REGISTRATION
UNDER THE EXCHANGE ACT
The Wilber Corporation's purchase of shares pursuant to this Offer to
Purchase will reduce the number of shares that might otherwise be traded
publicly and may reduce the number of shareholders. Nonetheless, we anticipate
that there will be a sufficient number of shares outstanding and publicly traded
following consummation of the Offer to Purchase to ensure a continued trading
market for the shares. Based upon published guidelines of the Amex(R), we
believe that following our purchase of shares pursuant to the Offer to Purchase,
our remaining shares will continue to qualify to be quoted on the Amex(R).
The Company's shares are currently "margin securities" under the rules
of the Federal Reserve. This has the effect, among other things, of allowing
brokers to extend credit to their customers using such shares as collateral. We
believe that, following the purchase of shares pursuant to the Offer to
Purchase, the shares will continue to be "margin securities" for purposes of the
Federal Reserve's margin regulations.
The Company's shares are registered under the Exchange Act, which
requires, among other things, that we furnish certain information to our
shareholders and the SEC and comply with the SEC's proxy rules in connection
with meetings of our shareholders. See Section 18.
14. LEGAL MATTERS; REGULATORY APPROVALS
If we purchase additional shares in an amount up to 2% of our
outstanding shares, the payment of a dividend by the Bank to the Company to fund
the purchase may require OCC approval. Likewise, the Company's issuance of trust
preferred securities to fund all or part of the purchase of shares tendered
would require the approval of the Federal Reserve. See Section 11.
We are not aware of any license or regulatory permit that appears to be
material to our business that might be adversely affected by our acquisition of
shares as contemplated herein. Except for the OCC and Federal Reserve approvals
discussed above, we are not aware of any approval or other action by, or any
filing with, any government or governmental, administrative or regulatory
authority or agency, domestic or foreign, including, but not limited to
regulators having jurisdiction over anti-trust matters that would be required
for the acquisition or ownership of shares by us as contemplated herein. Should
any approval or other action be required, we presently contemplate that the
approval or other action will be sought. There can be no assurance that any
approval or other action, if needed, would be obtained or would be obtained
without substantial conditions or that the failure to obtain any approval or
other action might not result in adverse consequences to our business. Our
obligations under the Offer to Purchase to accept for payment and pay for shares
is subject to certain conditions. See Section 7.
The Bank Holding Company Act of 1956 and the Change in Bank Control Act
each govern acquisition of control of bank holding companies. As a general
matter, a person may not acquire control of a bank holding company such as The
Wilber Corporation without the prior approval of the Federal Reserve. If, as a
result of the offer, any shareholder becomes the beneficial owner of more than
10% of our common stock, such shareholder may be required to reduce its
ownership interest in The Wilber Corporation or obtain regulatory approval to
21
continue to own more than 10%. The Company urges each shareholder whose
ownership interest may be so increased to consult the shareholder's own legal
counsel with respect to the consequences to the shareholder of the tender offer.
15. FEDERAL INCOME TAX CONSEQUENCES
General. The following is a discussion of the material United States
federal income tax consequences to shareholders with respect to a sale of shares
pursuant to the Offer to Purchase. The discussion is based upon the provisions
of the Internal Revenue Code of 1986, as amended, Treasury regulations, Internal
Revenue Service rulings and judicial decisions, all in effect as of the date
hereof and all of which are subject to change, possibly with retroactive effect,
by subsequent legislative, judicial or administrative action. The discussion
does not address all aspects of United States federal income taxation that may
be relevant to a particular shareholder in light of the shareholder's particular
circumstances or to certain types of holders subject to special treatment under
the United States federal income tax laws, such as certain financial
institutions, tax-exempt organizations, life insurance companies, dealers in
securities or currencies, employee benefit plans or shareholders holding the
shares as part of a conversion transaction, as part of a hedge or hedging
transaction, or as a position in a straddle for tax purposes. In addition, the
discussion below does not consider the effect of any foreign, state, local or
other tax laws that may be applicable to particular shareholders. The discussion
assumes that the shares are held as "capital assets" within the meaning of
Section 1221 of the Internal Revenue Code. We have neither requested nor
obtained a written opinion of counsel or a ruling from the Internal Revenue
Service with respect to the tax matters discussed below.
Each shareholder should consult his or her own tax advisor as to the
particular United States federal income tax consequences to that shareholder
tendering shares pursuant to the Offer to Purchase and the applicability and
effect of any state, local or foreign tax laws and recent changes in applicable
tax laws.
Characterization of the Surrender of Shares Pursuant to the Offer to
Purchase. The surrender of shares by a shareholder to The Wilber Corporation
pursuant to the Offer to Purchase will be a taxable transaction for United
States federal income tax purposes and may also be a taxable transaction under
applicable state, local and foreign tax laws. The United States federal income
tax consequences to a shareholder may vary depending upon the shareholder's
particular facts and circumstances. Under Section 302 of the Internal Revenue
Code, the surrender of shares by a shareholder to The Wilber Corporation
pursuant to the Offer to Purchase will be treated as a "sale or exchange" of
shares for United States federal income tax purposes, rather than as a
distribution by The Wilber Corporation with respect to the shares held by the
tendering shareholder, if the receipt of cash upon surrender (i) is
"substantially disproportionate" with respect to the shareholder, (ii) results
in a "complete redemption" of the shareholder's interest in The Wilber
Corporation, or (iii) is "not essentially equivalent to a dividend" with respect
to the shareholder, each as described below.
If any of the above three tests is satisfied, and the surrender of the
shares is therefore treated as a "sale or exchange" of shares for United States
federal income tax purposes, the tendering shareholder will recognize gain or
loss equal to the difference between the amount of cash received by the
shareholder and the shareholder's tax basis in the shares surrendered
22
pursuant to the Offer to Purchase. Any gain or loss will be capital gain or
loss, and will be long term capital gain or loss if the shares have been held
for more than one year.
If none of the above three tests is satisfied, the tendering
shareholder will be treated as having received a distribution by The Wilber
Corporation with respect to the shareholder's shares in an amount equal to the
cash received by the shareholder pursuant to the Offer to Purchase. The
distribution will be treated as a dividend, taxable as ordinary income to the
extent of The Wilber Corporation's current or accumulated earnings and profits
for tax purposes. The amount of the distribution in excess of The Wilber
Corporation's current or accumulated earnings and profits will be treated as a
return of the shareholder's tax basis in the shares, and then as gain from the
sale or exchange of the shares. If a shareholder is treated as having received a
distribution by The Wilber Corporation with respect to his or her shares, the
shareholder's tax basis in his or her remaining shares will generally be
adjusted to take into account the shareholders return of basis in the shares
tendered.
Constructive Ownership. In determining whether any of the three tests
under Section 302 of the Internal Revenue Code is satisfied, shareholders must
take into account not only the shares that are actually owned by the
shareholder, but also shares that are constructively owned by the shareholder
within the meaning of Section 318 of the Internal Revenue Code. Under Section
318 of the Code, a shareholder may constructively own shares actually owned, and
in some cases constructively owned, by certain related individuals or entities
and shares that the shareholder has the right to acquire by exercise of an
option or by conversion.
Proration. Contemporaneous dispositions or acquisitions of shares by a
shareholder or related individuals or entities may be deemed to be part of a
single integrated transaction and may be taken into account in determining
whether any of the three tests under Section 302 of the Internal Revenue Code
has been satisfied. Each shareholder should be aware that because proration may
occur in the Offer to Purchase, even if all the shares actually and
constructively owned by a shareholder are tendered pursuant to the Offer to
Purchase, fewer than all of these shares may be purchased by The Wilber
Corporation. Thus, proration may affect whether the surrender of shares by a
shareholder pursuant to the Offer to Purchase will meet any of the three tests
under Section 302 of the Code. See Section 6 for information regarding each
shareholder's option to make a conditional tender of a minimum number of shares.
A shareholder should consult his or her own tax advisor regarding whether to
make a conditional tender of a minimum number of shares, and the appropriate
calculation thereof.
Section 302 Tests. The receipt of cash by a shareholder will be
"substantially disproportionate" if the percentage of the outstanding shares in
The Wilber Corporation actually and constructively owned by the shareholder
immediately following the surrender of shares pursuant to the Offer to Purchase
is less than 80% of the percentage of the outstanding shares actually and
constructively owned by the shareholder immediately before the sale of shares
pursuant to the Offer to Purchase. Shareholders should consult their tax
advisors with respect to the application of the "substantially disproportionate"
test to their particular situation.
The receipt of cash by a shareholder will be a "complete redemption" if
either (i) the shareholder owns no shares in The Wilber Corporation either
actually or constructively immediately after the shares are surrendered pursuant
to the Offer to Purchase, or (ii) the
23
shareholder actually owns no shares in The Wilber Corporation immediately after
the surrender of shares pursuant to the Offer to Purchase and, with respect to
shares constructively owned by the shareholder immediately after the Offer to
Purchase, the shareholder is eligible to waive, and effectively waives,
constructive ownership of all such shares under procedures described in Section
302(c) of the Internal Revenue Code. A director, officer or employee of The
Wilber Corporation is not eligible to waive constructive ownership under the
procedures described in Section 302(c) of the Internal Revenue Code.
Even if the receipt of cash by a shareholder fails to satisfy the
"substantially disproportionate" test or the "complete redemption" test, a
shareholder may nevertheless satisfy the "not essentially equivalent to a
dividend" test if the shareholder's surrender of shares pursuant to the Offer to
Purchase results in a "meaningful reduction" in the shareholder's interest in
The Wilber Corporation. Whether the receipt of cash by a shareholder will be
"not essentially equivalent to a dividend" will depend upon the individual
shareholder's facts and circumstances. The Internal Revenue Service has
indicated in published rulings that even a small reduction in the proportionate
interest of a small minority shareholder in a publicly held corporation who
exercises no control over corporate affairs may constitute such a "meaningful
reduction." Shareholders expecting to rely upon the "not essentially equivalent
to a dividend" test should consult their own tax advisors as to its application
in their particular situation.
Corporate Shareholder Dividend Treatment. If a sale of shares by a
corporate shareholder is treated as a dividend, the corporate shareholder may be
entitled to claim a deduction equal to 70% of the dividend under Section 243 of
the Internal Revenue Code, subject to applicable limitations. Corporate
shareholders should, however, consider the effect of Section 246(c) of the
Internal Revenue Code, which disallows the 70% dividends-received deduction with
respect to stock that is held for forty-five (45) days or less. For this
purpose, the length of time a taxpayer is deemed to have held stock may be
reduced by periods during which the taxpayer's risk of loss with respect to the
stock is diminished by reason of the existence of certain options or other
transactions. Moreover, under Section 246A of the Internal Revenue Code, if a
corporate shareholder has incurred indebtedness directly attributable to an
investment in shares, the 70% dividends-received deduction may be reduced.
In addition, amounts received by a corporate shareholder pursuant to
the Offer to Purchase that are treated as a dividend may constitute an
"extraordinary dividend" under Section 1059 of the Internal Revenue Code. The
"extraordinary dividend" rules of the Internal Revenue Code are highly
complicated. Accordingly, any corporate shareholder that might have a dividend
as a result of the sale of shares pursuant to the Offer to Purchase should
review the "extraordinary dividend" rules to determine the applicability and
impact of such rules to it.
Additional Tax Considerations. The distinction between long-term
capital gains and ordinary income is relevant because, in general, individuals
currently are subject to taxation at a reduced rate on their "net capital gain,"
which is the excess of net long-term capital gains over net short-term capital
losses, for the year. Tax rates on long-term capital gain for individual
shareholders vary depending on the shareholders' income and holding period for
the shares. In particular, reduced tax rates apply to gains recognized by an
individual from the sale of capital assets held for more than one year,
currently 15 percent or less.
24
Shareholders are urged to consult their own tax advisors regarding any
possible impact on their obligation to make estimated tax payments as a result
of the recognition of any capital gain, or the receipt of any ordinary income,
caused by the surrender of any shares to The Wilber Corporation pursuant to the
Offer to Purchase.
Foreign Shareholders. The Wilber Corporation will withhold United
States federal income tax at a rate of 30% from gross proceeds paid pursuant to
the Offer to Purchase to a foreign shareholder or his agent, unless we determine
that a reduced rate of withholding is applicable pursuant to a tax treaty or
that an exemption from withholding is applicable because the gross proceeds are
effectively connected with the conduct of a trade or business by the foreign
shareholder within the United States. For this purpose, a foreign shareholder is
any shareholder that is not (i) a citizen or resident of the United States, (ii)
a domestic corporation or domestic partnership, (iii) an estate the income of
which from sources without the United States is effectively connected with the
conduct of a trade or business within the United States, or (iv) a trust if a
court within the United States is able to exercise primary supervision over the
administration of the trust, and one or more United States persons have the
authority to control all substantial decisions of the trust. Without definite
knowledge to the contrary, we will determine whether a shareholder is a foreign
shareholder by reference to the shareholder's address. A foreign shareholder may
be eligible to file for a refund of the tax or a portion of the tax if the
shareholder (a) meets the "complete redemption," "substantially
disproportionate" or "not essentially equivalent to a dividend" tests described
above, (b) is entitled to a reduced rate of withholding pursuant to a treaty and
The Wilber Corporation withheld at a higher rate, or (c) is otherwise able to
establish that no tax or a reduced amount of tax was due. In order to claim an
exemption from withholding on the ground that gross proceeds paid pursuant to
the Offer to Purchase are effectively connected with the conduct of a trade or
business by a foreign shareholder within the United States or that the foreign
shareholder is entitled to the benefits of a tax treaty, the foreign shareholder
must deliver to the Depositary, or other person who is otherwise required to
withhold United States tax, a properly executed statement claiming such
exemption or benefits. These statements may be obtained from the Depositary.
Foreign shareholders are urged to consult their own tax advisors regarding the
application of United States federal income tax withholding, including
eligibility for a withholding tax reduction or exemption and the refund
procedures.
Backup Withholding. See Section 3 with respect to the application of
the United States federal income tax backup withholding.
The tax discussion set forth above is included for general information
only and may not apply to shares acquired in connection with the exercise of
stock options or pursuant to other compensation arrangements with The Wilber
Corporation. The tax consequences of a sale pursuant to the Offer to Purchase
may vary depending upon, among other things, the particular circumstances of the
tendering shareholder. No information is provided with respect to the state,
local or foreign tax consequences of the transaction contemplated by the Offer
to Purchase. Shareholders are urged to consult their own tax advisors to
determine the particular federal, state, local and foreign tax consequences to
them of tendering shares pursuant to the Offer to Purchase and the effect of the
stock ownership attribution rules described above.
25
16. EXTENSION OF TENDER PERIOD; TERMINATION; AMENDMENTS
The Wilber Corporation expressly reserves the right, in our sole
discretion, to extend the period of time during which the Offer to Purchase is
open by giving oral or written notice of the extension to the Depositary and
making a public announcement of the extension. There can be no assurance,
however, that we will exercise our right to extend the Offer to Purchase. During
any extension, all shares previously tendered will remain subject to the Offer
to Purchase, except to the extent that shares may be withdrawn as set forth in
Section 4. We also expressly reserve the right, in our sole discretion, to: (i)
terminate the Offer to Purchase and not accept for payment any shares not
previously accepted for payment or, subject to Rule 13e-4(f)(5) under the
Exchange Act which requires us either to pay the consideration offered or to
return the shares tendered promptly after the termination or withdrawal of the
Offer to Purchase, to postpone payment for shares upon the occurrence of any of
the conditions specified in Section 7 hereof, by giving oral or written notice
of the termination to the Depositary and making a public announcement of the
termination; and (ii) amend the Offer to Purchase in any respect. Any amendments
to the Offer to Purchase will be effected by public announcement. Without
limiting the manner in which The Wilber Corporation may choose to make public
announcement of any extension, termination or amendment, The Wilber Corporation
shall have no obligation, except as otherwise required by applicable law, to
publish, advertise or otherwise communicate any public announcement, other than
by making a release to PR Newswire, except in the case of an announcement of an
extension of the Offer to Purchase, in which case The Wilber Corporation shall
have no obligation to publish, advertise or otherwise communicate the
announcement other than by issuing a notice of the extension by press release or
other public announcement, which notice shall be issued no later than 9:00 a.m.,
New York City Time, on the next business day after the previously scheduled
Expiration Date. Material changes to information previously provided to holders
of the shares in this Offer to Purchase or in documents furnished subsequent
thereto will be disseminated to holders of shares in compliance with Rule
13e-4(e)(3) promulgated by the SEC under the Exchange Act.
If we materially change the terms of the Offer to Purchase or the
information concerning the Offer to Purchase, or if we waive a material
condition of the Offer to Purchase, we will extend the Offer to Purchase to the
extent required by Rules 13e-4(d)(2) and 13e-4(e)(3) under the Exchange Act.
Those rules require that the minimum period during which an Offer to Purchase
must remain open following material changes in the terms of the Offer to
Purchase or information concerning the Offer to Purchase, other than a change in
price, change in dealer's soliciting fee or change in percentage of securities
sought, will depend on the facts and circumstances, including the relative
materiality of the terms or information. In a published release, the SEC has
stated that in its view, an offer to purchase should remain open for a minimum
of five business days from the date that notice of a material change is first
published, sent or given. The Offer to Purchase will continue or be extended for
at least ten (10) business days from the time The Wilber Corporation publishes,
sends or gives to holders of shares a notice that we will: (i) increase or
decrease the price we will pay for shares or the amount of the dealer
manager's/information agent's soliciting fee; or (ii) increase, except for an
increase not exceeding 2% of the outstanding shares, or decrease the number of
shares we seek.
26
17. SOLICITATION FEES AND EXPENSES
Sandler O'Neill & Partners, L.P. will act as the dealer manager and
information agent for The Wilber Corporation in connection with the Offer to
Purchase. Sandler O'Neill, as information agent, may contact shareholders by
mail, telephone, facsimile, telex, telegraph, other electronic means and
personal interviews, and may request brokers, dealers and other nominee
shareholders to forward materials relating to the Offer to Purchase to
beneficial owners. The Wilber Corporation has agreed to pay Sandler O'Neill a
retainer fee of $10,000.00 and, upon acceptance for and payment of shares
pursuant to the Offer to Purchase, $0.07 per share purchased by The Wilber
Corporation pursuant to the Offer to Purchase. Sandler O'Neill will also be
reimbursed for certain out-of-pocket expenses. Sandler O'Neill will also be
indemnified against certain liabilities, including liabilities under the federal
securities laws, in connection with the Offer to Purchase.
During the past two years, Sandler O'Neill has not received any
compensation from The Wilber Corporation for any investment banking or other
financial advisory services. Sandler O'Neill may provide such services to The
Wilber Corporation in the future and may receive compensation for such services.
In addition, in the ordinary course of its business as a broker-dealer, Sandler
O'Neill may also purchase securities from and sell securities to The Wilber
Corporation. Sandler O'Neill may also actively trade the equity securities of
The Wilber Corporation for its own account and for the accounts of its customers
and, accordingly, may at any time hold a long or short position in such
securities.
We have retained Registrar and Transfer Company as Depositary in
connection with the Offer to Purchase. The Depositary will receive reasonable
and customary compensation for its services and will also be reimbursed for
certain out-of-pocket expenses. The Wilber Corporation has agreed to indemnify
Registrar and Transfer Company against liabilities arising from its good faith
performance of services as Depositary in connection with the Offer to Purchase.
Neither the information agent nor the Depositary has been retained to make
solicitations or recommendations in connection with the Offer to Purchase
We will not pay any fees or commissions to any broker, dealer or other
person for soliciting tenders of shares pursuant to the Offer to Purchase, other
than the fee of the dealer manager. The Wilber Corporation will, upon request,
reimburse brokers, dealers, commercial banks and trust companies for reasonable
and customary handling and mailing expenses incurred by them in forwarding
materials relating to the Offer to Purchase to their customers.
18. WHERE YOU CAN OBTAIN ADDITIONAL INFORMATION
The Wilber Corporation is subject to the informational requirements of
the Exchange Act and in accordance therewith files reports, proxy statements and
other information with the SEC relating to our business, financial condition and
other matters. Certain information as of particular dates concerning our
directors and officers, their remuneration, the principal holders of The Wilber
Corporation's securities and any material interest of these persons in
transactions with The Wilber Corporation is filed with the SEC. We have also
filed an Issuer Tender Offer Statement on Schedule TO with the SEC, which
includes certain additional information relating to the Offer to Purchase. These
reports, as well as such other material, may be inspected and
27
copies may be obtained at the SEC's public reference facilities at 100 F Street,
N.E, Room 1580, Washington, D.C. Copies of this material may be obtained by
mail, upon payment of the SEC's customary fees, from the SEC's Public Reference
Section at 100 F Street, N.E, Room 1580, Washington, D.C.20549. Please call the
SEC at (202) 551-8090, for further information on the public reference room. The
Wilber Corporation's SEC filings are also available to the public from
commercial document retrieval services and at the web site maintained by the SEC
at "www.sec.gov." You may view and print this Offer to Purchase, the Letter of
Transmittal and other exhibits at our web site at "www.wilberbank.com".
The Offer to Purchase is being made to all holders of shares. The
expiration of the offer, other than shareholders who tender conditionally, and
for whom the condition is not satisfied. See sections 1, 2 and 6 of the Offer to
Purchase. All shares not purchased pursuant to the offer, including shares
tendered at prices greater than the purchase price and shares not purchased
because of proration or because they were conditionally tendered and not
accepted for purchases will be returned to the tendering shareholders at The
Wilber Corporation's expense as promptly as practicable following the expiration
date. Wilber Corporation is not aware of any state where the making of the Offer
to Purchase is prohibited by administrative or judicial action pursuant to a
valid state statute. If we become aware of any valid state statute prohibiting
the making of the Offer to Purchase, we will make a good faith effort to comply
with the statute. If, after such good faith effort, we cannot comply with the
statute, the Offer to Purchase will not be made to, nor will tenders be accepted
from or on behalf of, holders of shares in that state. In those jurisdictions
whose securities, blue sky or other laws require the Offer to Purchase to be
made by a licensed broker or dealer, the Offer to Purchase shall be deemed to be
made on behalf of The Wilber Corporation by the Dealer Manager/Information Agent
or one or more registered brokers or dealers licensed under the laws of these
jurisdictions.
Questions and requests for assistance may be directed to the
information agent at the telephone number listed below. Additional copies of
this Offer to Purchase, the Letter of Transmittal, the notice of guaranteed
delivery or any other tender offer materials may be obtained from the
information agent. You may also contact your broker, dealer, bank, trust company
or other nominee for assistance concerning the Offer to Purchase.
The Letter of Transmittal, certificates for shares and any other
required documents should be sent or delivered by the shareholder or the
shareholder's broker, dealer, bank, trust company or other nominee to the
Depositary at the address listed below. Any questions concerning tender
procedures may be directed to the Depositary at the telephone number listed
below.
The Depositary for the Offer to Purchase is:
Registrar and Transfer Company
10 Commerce Drive
Cranford, New Jersey 07016
Telephone (800) 368-5948
The Dealer Manager/Information Agent for the Offer to Purchase is:
Sandler O'Neill & Partners, L.P.
919 Third Avenue, 6th Floor
New York, NY 10022
Telephone: (800) 635-6851
28
Exhibit (a)(1)(ii)
THE WILBER CORPORATION
Mailing Address: LETTER OF TRANSMITTAL By Hand:
Registrar and Transfer To Accompany Shares of Common Stock of Registrar and Transfer
Company Company
Attn: Reorg/Exchange Dept. The Wilber Corporation Attn: Reorg/Exchange
Dept.
P.O. Box 645 Tendered Pursuant to the Offer to Purchase Dated April 4, 2006 10 Commerce Drive
Cranford, New Jersey THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE Cranford, New Jersey
07016-0645 07016
For Assistance: AT 5:00 P.M., NEW YORK CITY TIME, By Facsimile:
(800) 368-5948 ON MAY 4, 2006, UNLESS THE OFFER IS EXTENDED. (908) 497-2310
(For Eligible
Institutions Only)
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DESCRIPTION OF SHARES TENDERED (See Instructions 3 and 4)
------------------------------------------------------------------------------------------------------------------------------------
Name(s) and Address(es) of Registered Holder(s) Shares Tendered
(Please Fill In Exactly as Name(s) Appear(s) on Certificate(s)) (Attach Additional List, if Necessary)
------------------------------------------------------------------------------------------------------------------------------------
Certificate Total Number of Number of
Shares Represented Shares
Number(s)* by Certificate(s)* Tendered**
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Total
Shares
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* Need not be completed by stockholders tendering by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all shares represented by any certificates delivered to the depositary are
being tendered. See instruction 4.
------------------------------------------------------------------------------------------------------------------------------------
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR
TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN ONE LISTED ABOVE
WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THE LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be used if certificates are to be
forwarded herewith or if delivery of shares is to be made by book-entry transfer
to the depositary's account at The Depository Trust Company pursuant to the
procedures set forth in Section 3 of the accompanying Offer to Purchase (white
booklet).
Delivery of documents to The Wilber Corporation or to the book-entry
transfer facility does not constitute a valid delivery.
(BOX BELOW FOR USE BY ELIGIBLE INSTITUTIONS ONLY)
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to The Wilber Corporation, a New York
corporation, the above described shares of its common stock, par value $.01 per
share, at a price per share hereinafter set forth, pursuant to The Wilber
Corporation's offer to purchase up to 650,000 shares, upon the terms and subject
to the conditions set forth in the Offer to Purchase, dated April 4, 2006,
receipt of which is hereby acknowledged, and in this Letter of Transmittal,
which together constitute the "offer."
Subject to, and effective upon, acceptance for payment of and payment for
the shares tendered herewith in accordance with the terms and subject to the
conditions of the offer, including, if the offer is extended or amended, the
terms and conditions of any such extension or amendment, the undersigned hereby
sells, assigns and transfers to, or upon the order of, The Wilber Corporation
all right, title and interest in and to all the shares that are being tendered
hereby or orders the registration of the shares tendered by book-entry transfer
that are purchased pursuant to the offer to or upon the order of The Wilber
Corporation and irrevocably constitutes and appoints the depositary the true and
lawful agent and attorney-in-fact of the undersigned with respect to the shares,
with full power of substitution, such power of attorney being deemed to be an
irrevocable power coupled with an interest, to (i) deliver certificates for the
shares, or transfer ownership of the shares on the account books maintained by
the book-entry transfer facility, together, in any case, with all accompanying
evidences of transfer and authenticity, to or upon the order of The Wilber
Corporation upon receipt by the depositary, as the undersigned's agent, of the
purchase price with respect to the shares, (ii) present certificates for the
shares for cancellation and transfer on the books of The Wilber Corporation and
(iii) receive all benefits and otherwise exercise all rights of beneficial
ownership of the shares, all in accordance with the terms of the offer.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the shares
tendered hereby and that, when and to the extent the same are accepted for
payment by The Wilber Corporation, The Wilber Corporation will acquire good,
marketable and unencumbered title thereto, free and clear of all liens,
restrictions, charges, encumbrances, conditional sales agreements or other
obligations relating to the sale or transfer thereof, and the same will not be
subject to any adverse claims. The undersigned will, upon request, execute and
deliver any additional documents deemed by the depositary or The Wilber
Corporation to be necessary or desirable to complete the sale, assignment and
transfer of the shares tendered hereby.
The undersigned hereby represents and warrants that the undersigned has
read and agrees to all of the terms of the offer. All authority herein conferred
or agreed to be conferred shall not be affected by, and shall survive the death
or incapacity of the undersigned, and any obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned. Except as stated in the offer, this tender is
irrevocable.
The undersigned understands that tenders of shares pursuant to any one of
the procedures described in Section 2 or 3 of the Offer to Purchase and in the
instructions to this Letter of Transmittal will constitute the undersigned's
acceptance of the terms and conditions of the offer, including the undersigned's
representation and warranty that (i) the undersigned has a net long position in
the shares being tendered within the meaning of Rule 14e 4 promulgated under the
Securities Exchange Act of 1934, as amended, and (ii) the tender of the shares
complies with Rule 14e 4. The Wilber Corporation's acceptance for payment of
shares tendered pursuant to the offer will constitute a binding agreement
between the undersigned and The Wilber Corporation upon the terms and subject to
the conditions of the offer.
The undersigned understands that The Wilber Corporation will determine a
single per share price, not greater than $11.40 nor less than $9.90 per share,
net to the seller in cash, without interest thereon, that it will pay for shares
validly tendered and not withdrawn pursuant to the offer taking into account the
number of shares so tendered and the prices specified by tendering stockholders.
The undersigned understands that The Wilber Corporation will select the lowest
purchase price that will enable it to purchase 650,000 shares, or a lesser
number of shares as are validly tendered and not withdrawn at prices not greater
than $11.40 nor less than $9.90 per share, pursuant to the offer. The
undersigned understands that all shares properly tendered and not withdrawn at
prices at or below the purchase price will be purchased at the purchase price,
net to the seller in cash, without interest thereon, upon the terms and subject
to the conditions of the offer, including its proration and conditional tender
provisions, and that The Wilber Corporation will return all other shares,
including shares tendered and not withdrawn at prices greater than the purchase
price, shares not purchased because of proration and shares that were
conditionally tendered and not accepted. The undersigned understands that
tenders of shares pursuant to any one of the procedures described in Section 2
or 3 of the Offer to Purchase and in the instructions to this Letter of
Transmittal will constitute an agreement between the undersigned and The Wilber
Corporation upon the terms and subject to the conditions of the offer.
The undersigned recognizes that, under certain circumstances set forth in
the Offer to Purchase, The Wilber Corporation may terminate or amend the offer
or may postpone the acceptance for payment of, or the payment for, shares
tendered or may not be required to purchase any of the shares tendered hereby or
may accept for payment fewer than all of the shares tendered hereby.
Unless otherwise indicated under "Special Payment Instructions," please
issue the check for the purchase price of any shares purchased, and/or return
any shares not tendered or not purchased, in the name(s) of the undersigned,
and, in the case of shares tendered by book-entry transfer, by credit to the
account at the book-entry transfer facility. Similarly, unless otherwise
indicated under "Special Delivery Instructions," please mail the check for the
purchase price of any shares purchased and/or any certificates for shares not
tendered or not purchased, and accompanying documents, as appropriate, to the
undersigned at the address shown below the undersigned's signature(s). In the
event that both "Special Payment Instructions" and "Special Delivery
Instructions" are completed, please issue the check for the purchase price of
any shares purchased and/or return any shares not tendered or not purchased in
the name(s) of, and mail said check and/or any certificates to, the person(s) so
indicated. The undersigned recognizes that The Wilber Corporation has no
obligation, pursuant to the "Special Payment Instructions," to transfer any
shares from the name of the registered holder(s) thereof if The Wilber
Corporation does not accept for payment any of the shares so tendered.
---------------------------------------------------------------------------------------------------------------
[_] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK ENTRY TRANSFER TO THE DEPOSITARY'S ACCOUNT AT THE
BOOK ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
---------------------------------------------------------------------------------
Account No. Transaction Code No.
----------------------------------------- ----------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
PRICE (IN DOLLARS) PER SHARE AT WHICH SHARES ARE BEING TENDERED
(See Instruction 5)
CHECK ONE BOX. IF MORE THAN ONE BOX IS CHECKED BELOW, OR IF NO BOX IS CHECKED, THERE IS NO VALID TENDER OF
SHARES.
[_] $9.90 [_] $10.20 [_] $10.50 [_] $10.80 [_] $11.10 [_] $11.40
[_] $10.00 [_] $10.30 [_] $10.60 [_] $10.90 [_] $11.20
[_] $10.10 [_] $10.40 [_] $10.70 [_] $11.00 [_] $11.30
If you do not wish to specify a purchase price, check the following box, in which case you will be deemed to
have tendered at the purchase price
---------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ODD LOTS
(See Instruction 9)
This section is to be completed ONLY if shares are being tendered by or on
behalf of a person owning beneficially, as of the close of business on March 17,
2006, and who continues to own beneficially as of the expiration date, an
aggregate of fewer than 100 shares.
The undersigned either (check one box):
[_] was the beneficial owner as of the close of business on March 17, 2006,
and continues to be the beneficial owner as of the expiration date, of an
aggregate of fewer than 100 shares, all of which are being tendered, or
[_] is a broker, dealer, commercial bank, trust company or other nominee that
(i) is tendering, for the beneficial owners thereof, shares with respect
to which it is the record owner, and (ii) believes, based upon
representations made to it by each beneficial owner, that the beneficial
owner owned beneficially as of the close of business on March 17, 2006,
and continues to own beneficially as of the expiration date, an aggregate
of fewer than 100 shares, and is tendering all of those shares.
--------------------------------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 6, 7 and 8)
To be completed ONLY if the check for the purchase price of shares
purchased and/or certificates for shares not tendered or not purchased are to be
issued in the name of someone other than the undersigned.
Issue [_] check and/or [_] certificate(s) to:
Name
---------------------------------------------------------------------------
(PLEASE PRINT)
Address
------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
--------------------------------------------------------------------------------
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NO.)
--------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 6, 7 and 8)
To be completed ONLY if the check for the purchase price of shares purchased
and/or certificates for shares not tendered or not purchased are to be mailed to
someone other than the undersigned or to the undersigned at an address other
than that shown below the undersigned's signature(s).
Mail [_] check and/or [_] certificate(s) to:
Name
---------------------------------------------------------------------------
(PLEASE PRINT)
Address
------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
--------------------------------------------------------------------------------
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NO.)
--------------------------------------------------------------------------------
CONDITIONAL TENDER
You may condition the tender of your shares upon the purchase by The
Wilber Corporation of a specified minimum number of the shares you tendered. See
Section 6 in the Offer to Purchase. Unless at least the minimum number of shares
tendered by you is purchased by The Wilber Corporation, none of the shares
tendered hereby will be purchased. It is your responsibility to calculate the
minimum number of shares, and you are urged to consult your tax advisor. Unless
this box has been completed and a minimum specified, the tender will be deemed
unconditional.
Minimum number of shares that must be purchased, if any are purchased:
__________ shares
--------------------------------------------------------------------------------
SIGN HERE
(PLEASE COMPLETE SUBSTITUTE FORM W-9 INCLUDED IN THIS LETTER OF TRANSMITTAL)
(Signature(s) of Owner(s))
Dated:
-------------------------------------------------------------------------
Name(s):
-----------------------------------------------------------------------
Capacity (full title):
----------------------------------------------------------
Address:
------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone No.
-----------------------------------------------------
(Must be signed by registered holder(s) exactly as name(s) appear(s) on stock
certificate(s) or on a security position listing or by person(s) authorized to
become registered holder(s) by certificates and documents transmitted herewith.
If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a fiduciary
or representative capacity, please set forth full title and see Instruction 6.)
--------------------------------------------------------------------------------
GUARANTEE OF SIGNATURE(S)
(See Instructions 1 and 6)
Name of Firm:
------------------------------------------------------------------
Authorized Signature(s):
-------------------------------------------------------
Dated:
-------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PAYER'S NAME: THE WILBER CORPORATION
--------------------------------------------------------------------------------
SUBSTITUTE
Form W-9
Department of the Treasury
Internal Revenue Service
Payer's Request for Taxpayer
Identification Number
(See Instruction B(8))
Please fill in your name and address below.
Name: __________________________________________________________________________
________________________________________________________________________________
Business name, if different from above
Check appropriate box:
|_| Individual/Sole proprietor |_| Corporation
|_| Partnership |_| Other
________________________________________________________________________________
Address (number and street)
________________________________________________________________________________
City, State and Zip Code
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Part 1 -- TAXPAYER IDENTIFICATION NO. - FOR ALL ACCOUNTS ENTER YOUR TAXPAYER
IDENTIFICATION NUMBER IN THE APPROPRIATE BOX. FOR MOST INDIVIDUALS AND SOLE
PROPRIETORS, THIS IS YOUR SOCIAL SECURITY NUMBER. FOR OTHER ENTITIES, IT IS YOUR
EMPLOYER IDENTIFICATION NUMBER. IF YOU DO NOT HAVE A NUMBER, SEE "HOW TO OBTAIN
A TIN" IN THE ENCLOSED GUIDELINES.
Note: If the account is in more than one name, see the chart on the enclosed
Guidelines to determine what number to enter.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
________________________________________________________________________________
Social Security Number(s)
OR
________________________________________________________________________________
Employer Identification Number(s)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Part 2 -- Certification -- For Payees Exempt from Backup Withholding (see
enclosed Guidelines) - Under penalties of perjury, I certify that:
(1) The number shown on the form is my correct Taxpayer Identification Number
(or I am waiting for a number to be issued to me) and
(2) I am not subject to backup withholding either because (a) I am exempt from
backup withholding, or (b) I have not been notified by the Internal
Revenue Service ("IRS") that I am subject to backup withholding as a
result of a failure to report all interest or dividends or (c) the IRS has
notified me that I am no longer subject to backup withholding; and
(3) I am a U.S. person (including a U.S. resident alien).
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Part 3 --
Awaiting TIN |_|
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Certificate Instructions -- You must cross out item 2 above if you have been
notified by the IRS that you are currently subject to backup withholding because
you have failed to report all interest and dividends on your tax return and you
have not been notified by the IRS that you are no longer subject to backup
withholding. For real estate transactions, item 2 does not apply. For mortgage
interest paid, acquisition or abandonment of secured property, cancellation of
debt, contributions to and individual retirement arrangement (IRA), and
generally, payments other than interest and dividends, you are not required to
sign the Certification, but you must provide your correct TIN. (See the enclosed
Guidelines).
SIGNATURE _____________________________________________ DATE ____________ , 20__
--------------------------------------------------------------------------------
Exhibit (a)(2)(i)
919 Third Avenue, 6th Floor
New York, NY 10022
Telephone: (800) 635-6851
THE WILBER CORPORATION
Offer To Purchase For Cash Up To
650,000 Shares Of Its Common Stock
At A Purchase Price Not In Excess Of $11.40
Nor Less Than $9.90 Per Share
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT
5:00 P.M., NEW YORK CITY TIME, ON MAY 4, 2006,
UNLESS THE OFFER IS EXTENDED.
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
The Wilber Corporation, a New York corporation, has appointed us to act
as dealer manager in connection with its offer to purchase for cash up to
650,000 shares of its common stock, $0.01 par value per share. The offer to
purchase is being made at prices not in excess of $11.40 nor less than $9.90 per
share, as specified by shareholders tendering their shares, upon the terms and
subject to the conditions set forth in the accompanying Offer to Purchase, dated
April 4, 2006 (white booklet), and in the related Letter of Transmittal (blue
form), which together constitute the "offer."
The Wilber Corporation will determine the single per share price, not
in excess of $11.40 nor less than $9.90 per share, net to the tendering
shareholder, in cash, that it will pay for shares validly tendered pursuant to
the offer, taking into account the number of shares so tendered and the prices
specified by tendering shareholders. The Wilber Corporation will select the
lowest purchase price that will allow it to buy 650,000 shares, or the lesser
number of shares that are properly tendered at prices not in excess of $11.40
nor less than $9.90 per share. All shares validly tendered at prices at or below
the purchase price and not withdrawn on or prior to the expiration date, as
defined in section 1 of the Offer to Purchase, will be purchased at the purchase
price, subject to the terms and conditions of the offer, including the proration
and conditional tender provisions. See sections 1 and 16 of the Offer to
Purchase.
Upon the terms and subject to the conditions of the offer, if, at the
expiration of the offer, more than 650,000 shares are validly tendered at or
below the purchase price and not withdrawn, The Wilber Corporation will buy
shares (i) from shareholders who owned beneficially as of the close of business
on March 17, 2006 and continue to own beneficially as of the expiration date, an
aggregate of fewer than 100 shares who properly tender all their shares at or
below the purchase price, and (ii) then, on a pro rata basis, from all other
shareholders who properly tender their shares at prices at or below the purchase
price, and do not withdraw them prior to the
1
THE OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING
TENDERED PURSUANT TO THE OFFER. SEE SECTION 7 OF THE OFFER TO PURCHASE.
No fees or commissions will be payable to brokers, dealers or any
person for soliciting tenders of shares pursuant to the offer other than the fee
paid to the dealer manager as described in the Offer to Purchase. The Wilber
Corporation will, upon request, reimburse brokers and banks for reasonable and
customary handling and mailing expenses incurred by them in forwarding materials
relating to the offer to their customers. The Wilber Corporation will pay all
stock transfer taxes applicable to its purchase of shares pursuant to the offer,
subject to instruction 7 of the Letter of Transmittal.
No broker, dealer, bank, trust company or fiduciary shall be deemed to
be the agent of The Wilber Corporation, other than Registrar and Trust Company
as "depositary," and Sandler O'Neill & Partners, L.P. as the "dealer manager"
and "information agent," for purposes of the offer.
For your information and for forwarding to your clients for whom you
hold shares registered in your name or in the name of your nominee, we are
enclosing the following documents:
1. OFFER TO PURCHASE, DATED APRIL 4, 2006 (WHITE BOOKLET);
2. LETTER TO CLIENTS WHICH MAY BE SENT TO YOUR CLIENTS FOR WHOSE
ACCOUNTS YOU HOLD SHARES REGISTERED IN YOUR NAME OR IN THE
NAME OF YOUR NOMINEE, WITH SPACE PROVIDED FOR OBTAINING THE
CLIENTS' INSTRUCTIONS WITH REGARD TO THE OFFER (PINK LETTER);
3. LETTER, DATED APRIL 4, 2006 FROM DOUGLAS C. GULOTTY, PRESIDENT
AND CHIEF EXECUTIVE OFFICER OF THE WILBER CORPORATION, TO
SHAREHOLDERS OF THE WILBER CORPORATION (GRAY LETTER);
2
4. LETTER OF TRANSMITTAL FOR YOUR USE AND FOR THE INFORMATION OF
YOUR CLIENTS TOGETHER WITH AN ACCOMPANYING SUBSTITUTE FORM W-9
(BLUE DOCUMENT);
5. GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER
ON SUBSTITUTE FORM W-9 (GREEN FORM);
6. INSTRUCTION BOOKLET (PURPLE DOCUMENT); AND
7. NOTICE OF GUARANTEED DELIVERY (YELLOW FORM).
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. THE OFFER,
PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON MAY 4, 2006, UNLESS THE OFFER IS EXTENDED.
In order to take advantage of the offer, a duly executed and properly
completed Letter of Transmittal and any other required documents should be sent
to the depositary with either certificate(s) representing the tendered shares or
confirmation of their book-entry transfer, all in accordance with the
instructions set forth in the Letter of Transmittal and the Offer to Purchase.
Any inquiries you may have with respect to the offer should be
addressed to the depositary or the dealer manager/information agent at their
respective addresses and telephone numbers set forth on the back cover page of
the Offer to Purchase.
Additional copies of the enclosed material may be obtained from the
information agent, by calling toll free: (800) 635-6851.
Very truly yours,
Sandler O'Neill & Partners, L.P.
Enclosures
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR
ANY OTHER PERSON AS AN AGENT OF THE WILBER CORPORATION OR ANY OF ITS AFFILIATES,
THE DEALER MANAGER /INFORMATION AGENT OR THE DEPOSITARY, OR AUTHORIZE YOU OR ANY
OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM
IN CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE
STATEMENTS CONTAINED THEREIN.
3
Exhibit (a)(2)(ii)
THE WILBER CORPORATION
Offer To Purchase For Cash Up To
650,000 Shares Of Its Common Stock
At A Purchase Price Not In Excess Of $11.40
Nor Less Than $9.90 Per Share
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT
5:00 P.M., NEW YORK CITY TIME, ON MAY 4, 2006,
UNLESS THE OFFER IS EXTENDED
To Our Clients:
Enclosed for your consideration are the Offer to Purchase (white
booklet), dated April 4, 2006, and the related Letter of Transmittal (blue form)
in connection with the offer by The Wilber Corporation to purchase up to 650,000
shares of its common stock, $0.01 par value per share, at prices not in excess
of $11.40 nor less than $9.90 per share, as specified by tendering shareholders,
upon the terms and subject to the conditions set forth in the offer.
The Wilber Corporation will determine the single per share price, not
in excess of $11.40 nor less than $9.90 per share, net to the tendering
shareholder, in cash, that it will pay for shares validly tendered pursuant to
the offer, taking into account the number of shares so tendered and the prices
specified by tendering shareholders. The Wilber Corporation will select the
lowest purchase price that will allow it to buy 650,000 shares, or the lesser
number of shares that are validly tendered at prices not in excess of $11.40 nor
less than $9.90 per share. All shares properly tendered at prices at or below
the purchase price and not withdrawn on or prior to the expiration date, as
defined in section 1 of the Offer to Purchase, will be purchased at the purchase
price, subject to the terms and conditions of the offer, including the proration
and conditional tender provisions. See sections 1 and 16 of the Offer to
Purchase.
Upon the terms and subject to the conditions of the offer, if at the
expiration of the offer more than 650,000 shares are validly tendered at or
below the purchase price and not withdrawn, The Wilber Corporation will buy
shares (i) from shareholders who owned beneficially as of the close of business
on March 17, 2006, and continue to own beneficially as of the expiration date an
aggregate of fewer than 100 shares who properly tender all their shares at
prices at or below the purchase price, and (ii) then, on a pro rata basis, from
all other shareholders who properly tender at or below the purchase price and do
not withdraw them prior to the expiration of the offer, other than shareholders
who tender conditionally and for whom the condition is not satisfied. See
sections 1, 2 and 6 of the Offer to Purchase. All shares not purchased pursuant
to the offer, including shares tendered at prices greater than the purchase
price and shares not purchased because of proration or because they were
conditionally tendered and not accepted for
purchase will be returned to the tendering shareholders at The Wilber
Corporation's expense as promptly as practicable following the expiration date
of the offer.
We are the owner of record of shares held for your account. Therefore,
we are the only ones who can tender your shares, and then only pursuant to your
instructions. We are sending you the Letter of Transmittal (blue document) for
your information only; you cannot use it to tender shares we hold for your
account. To tender your shares held by us, please complete and execute the
enclosed Instruction Form in the Letter of Transmittal.
Please instruct us as to whether you wish us to tender any or all of
the shares we hold for your account on the terms and subject to the conditions
of the offer.
We call your attention to the following:
1. You may tender shares at prices not in excess of $11.40 nor
less than $9.90 per share as indicated in the enclosed
Instruction Form in the Letter of Transmittal, net to you in
cash.
2. You may tender your shares conditioned upon The Wilber
Corporation purchasing all or a minimum number of your shares.
3. The offer is not conditioned on any minimum number of shares
being tendered pursuant to the offer.
4. The offer, proration period and withdrawal rights will expire
at 5:00 p.m., New York City Time, on May 4, 2006, unless The
Wilber Corporation extends the offer.
5. The offer is for 650,000 shares, constituting approximately
5.8% of the shares outstanding as of March 17, 2006.
6. Tendering shareholders will not be obligated to pay any
brokerage commissions, solicitation fees, or, subject to
instruction 7 of the Letter of Transmittal, stock transfer
taxes on The Wilber Corporation's purchase of shares pursuant
to the offer.
7. If you beneficially held, as of the close of business on March
17, 2006 an aggregate of fewer than 100 shares and you
continue to beneficially own as of the expiration date of the
offer an aggregate of fewer than 100 shares, and (i) you
instruct us to tender on your behalf all your shares at or
below the purchase price before the expiration date of the
offer and (ii) complete the box captioned "Odd Lots" in the
enclosed Instruction Form, then The Wilber Corporation, upon
the terms and subject to the conditions of the offer, will
accept all your shares for purchase before proration, if any,
of the purchase of other shares validly tendered at or below
the purchase price.
8. If you wish to tender portions of your shares at different
prices, you must complete a separate Instruction Form for each
price at which you wish to tender
1
each portion of your shares. We must submit separate Letters
of Transmittal on your behalf for each price you will accept.
You cannot, however, tender the same shares at different
prices.
If you wish to have us tender any or all of your shares, please so
instruct us by completing, executing, detaching and returning to us the enclosed
Instruction Form. An envelope to return your Instruction Form to us is enclosed.
If you authorize us to tender your shares, we will tender all your shares unless
you specify otherwise on the enclosed Instruction Form.
Your instruction form should be forwarded to us in ample time to permit
us to submit a tender on your behalf on or before the expiration date of the
offer. The offer, proration period and withdrawal rights expire at 5:00 p.m.,
New York City Time, on May 4, 2006, unless the company extends the offer.
As described in section 1 of the Offer to Purchase, if more than
650,000 shares have been validly tendered at prices at or below the purchase
price and not withdrawn on or prior to the expiration date, as defined in the
Offer to Purchase, The Wilber Corporation will purchase properly tendered shares
on the basis set forth below:
(a) first, all shares validly tendered and not withdrawn on or
prior to the expiration date by or on behalf of any shareholder who owned
beneficially, as of the close of business on March 17, 2006 and continues to own
beneficially as of the expiration date, an aggregate of fewer than 100 shares
who:
(1) validly tenders all of the shares at a price at or below
the purchase price - partial and conditional tenders will not qualify
for this preference; and
(2) completes the box captioned "Odd Lots" on the Letter of
Transmittal; and
(b) second, after purchase of all of the forgoing shares, all
shares validly tendered from other shareholders who properly tender their shares
at prices at or below the purchase price, and who do not withdraw them prior to
the expiration of the offer, other than shareholders who tender conditionally,
and for whom the condition is not satisfied, on a pro rata basis with
appropriate adjustments to avoid purchases of fractional shares, as described in
sections 1, 2 and 6 of the Offer to Purchase.
You may condition your tender on The Wilber Corporation purchasing a
minimum number of your tendered shares. In such case, if as a result of the
proration provisions in the Offer to Purchase The Wilber Corporation would
purchase less than the minimum number of your shares, then The Wilber
Corporation will not purchase any of your shares, except as provided in the next
sentence. If so many conditional tenders would be deemed withdrawn that the
total number of shares to be purchased falls below 650,000 shares, then to the
extent feasible, The Wilber Corporation will select enough of the conditional
tenders that would otherwise have been so withdrawn to permit The Wilber
Corporation to purchase 650,000 shares. In selecting among the conditional
tenders, The Wilber Corporation will select by lot and will limit its purchase
in each case to the minimum number of shares designated. See sections 1 and 6 of
the Offer to Purchase.
2
The offer is being made to all holders of shares. The Wilber
Corporation is not aware of any jurisdiction where the making of the offer is
not in compliance with applicable law. If The Wilber Corporation becomes aware
of any jurisdiction where the making of the offer is not in compliance with any
valid applicable law, The Wilber Corporation will make a good faith effort to
comply with the law. If, after a good faith effort, The Wilber Corporation
cannot comply with the law, the offer will not be made to, nor will tenders be
accepted from or on behalf of, holders of shares residing in that jurisdiction.
In any jurisdiction the securities or blue sky laws of which require the offer
to be made by a licensed broker or dealer, the offer is being made on The Wilber
Corporation's behalf by the dealer manager/information agent or one or more
registered brokers or dealers licensed under the laws of that jurisdiction.
3
Exhibit (a)(2)(iii)
The Wilber Corporation
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for determining the proper identification number to give the Payer.
Social Security numbers have nine digits separated by two hyphens: i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e. 00-0000000. The table below will help determine the number to
give the payer.
Purpose of Form
A person who is required to file an information return with the IRS, must obtain
your correct taxpayer identification number (TIN) to report, for example, income
paid to you, real estate transactions, mortgage interest you paid, acquisition
or abandonment of secured property, cancellation of debt, or contributions you
made to an IRA.
U.S. person. Use Form W-9 only if you are a U.S. person (including a resident
alien), to provide your correct TIN to the person requesting it (the requester)
and, when applicable, to:
1. Certify that the TIN you are giving is correct (or you are waiting
for a number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a U.S. exempt
payee. In 3 above, if applicable, you are also certifying that as a U.S. person,
your allocable share of any partnership income from a U.S. trade or business is
not subject to the withholding tax on foreign partners' share of effectively
connected income.
Note. If a requester gives you a form other than Form W-9 to request your TIN,
you must use the requester's form if it is substantially similar to this Form
W-9.
For federal tax purposes, you are considered a person if you are:
o An individual who is a citizen or resident of the United States,
o A partnership, corporation, company, or association created or organized in
the United States or under the laws of the United States, or
o Any estate (other than a foreign estate) or trust. See Regulations sections
301.7701-6(a) and 7(a) for additional information.
Special rules for partnerships. Partnerships that conduct a trade or business in
the United States are generally required to pay a withholding tax on any foreign
partners' share of income from such business. Further, in certain cases where a
Form W-9 has not been received, a partnership is required to presume that a
partner is a foreign person, and pay the withholding tax. Therefore, if you are
a U.S. person that is a partner in a partnership conducting a trade or business
in the United States, provide Form W-9 to the partnership to establish your U.S.
status and avoid withholding on your share of partnership income.
The person who gives Form W-9 to the partnership for purposes of establishing
its U.S. status and avoiding withholding on its allocable share of net income
from the partnership conducting a trade or business in the United States is in
the following cases:
o The U.S. owner of a disregarded entity and not the entity,
o The U.S. grantor or other owner of a grantor trust and not the trust, and
o The U.S. trust (other than a grantor trust) and not the beneficiaries of the
trust.
Foreign person. If you are a foreign person, do not use Form W-9. Instead, use
the appropriate Form W-8 (see Publication 515, Withholding of Tax on Nonresident
Aliens and Foreign Entities). Nonresident alien who becomes a resident alien.
Generally, only a nonresident alien individual may use the terms of a tax treaty
to reduce or eliminate U.S. tax on certain types of income. However, most tax
treaties contain a provision known as a "saving clause." Exceptions specified in
the saving clause may permit an exemption from tax to continue for certain types
of income even after the recipient has otherwise become a U.S. resident alien
for tax purposes.
If you are a U.S. resident alien who is relying on an exception
contained in the saving clause of a tax treaty to claim an exemption from U.S.
tax on certain types of income, you must attach a statement to Form W-9 that
specifies the following five items:
1. The treaty country. Generally, this must be the same treaty under
which you claimed exemption from tax as a nonresident alien.
2. The treaty article addressing the income.
3. The article number (or location) in the tax treaty that contains the
saving clause and its exceptions. 4. The type and amount of income that
qualifies for the exemption from tax. 5. Sufficient facts to justify the
exemption from tax under the terms of the treaty article.
Example. Article 20 of the U.S.-China income tax treaty allows an exemption from
tax for scholarship income received by a Chinese student temporarily present in
the United States. Under U.S. law, this student will become a resident alien for
tax purposes if his or her stay in the United States exceeds 5 calendar years.
However, paragraph 2 of the first Protocol to the U.S.-China treaty (dated April
30, 1984) allows the provisions of Article 20 to continue to apply even after
the Chinese student becomes a resident alien of the United States. A Chinese
student who qualifies for this exception (under paragraph 2 of the first
protocol) and is relying on this exception to claim an exemption from tax on his
or her scholarship or fellowship income would attach to Form W-9 a statement
that includes the information described above to support that exemption.
If you are a nonresident alien or a foreign entity not subject to backup
withholding give the requester the appropriate completed Form W-8. What is
backup withholding? Persons making certain payments to you must under certain
conditions withhold and pay to the IRS 28% of such payments (after December 31,
2002). This is called "backup withholding." Payments that may be subject to
backup withholding include interest, dividends, broker and barter exchange
transactions, rents, royalties, nonemployee pay, and certain payments from
fishing boat operators. Real estate transactions are not subject to backup
withholding.
--------------------------------------------------------------------------------
Form W-9 Cat. No. 10231X Form W-9 (Rev. 11-2005)
(Rev. November 2005)
Department of the Treasury
Internal Revenue Service
Form W-9 (Rev. 11-2005) Page 2
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You will not be subject to backup withholding on payments you receive if you
give the requester your correct TIN, make the proper certifications, and report
all your taxable interest and dividends on your tax return. Payments you receive
will be subject to backup withholding if:
1. You do not furnish your TIN to the requester,
2. You do not certify your TIN when required (see the Part II
instructions on page 4 for details),
3. The IRS tells the requester that you furnished an incorrect TIN,
4. The IRS tells you that you are subject to backup withholding because
you did not report all your interest and dividends on your tax return (for
reportable interest and dividends only), or
5. You do not certify to the requester that you are not subject to
backup withholding under 4 above (for reportable interest and dividend accounts
opened after 1983 only).
Certain payees and payments are exempt from backup withholding.
See the instructions below and the separate Instructions for the Requester of
Form W-9.
Also see Special rules regarding partnerships on page 1.
Penalties
Failure to furnish TIN. If you fail to furnish your correct TIN to a requester,
you are subject to a penalty of $50 for each such failure unless your failure is
due to reasonable cause and not to willful neglect. Civil penalty for false
information with respect to withholding. If you make a false statement with no
reasonable basis that results in no backup withholding, you are subject to a
$500 penalty. Criminal penalty for falsifying information. Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
Misuse of TINs. If the requester discloses or uses TINs in violation of federal
law, the requester may be subject to civil and criminal penalties. Specific
Instructions Name If you are an individual, you must generally enter the name
shown on your income tax return. However, if you have changed your last name,
for instance, due to marriage without informing the Social Security
Administration of the name change, enter your first name, the last name shown on
your social security card, and your new last name.
If the account is in joint names, list first, and then circle, the name
of the person or entity whose number you entered in Part I of the form.
Sole proprietor. Enter your individual name as shown on your income tax
return on the "Name" line. You may enter your business, trade, or "doing
business as (DBA)" name on the "Business name" line.
Limited liability company (LLC). If you are a single-member LLC
(including a foreign LLC with a domestic owner) that is disregarded as an entity
separate from its owner under Treasury regulations section 301.7701-3, enter the
owner's name on the "Name" line. Enter the LLC's name on the "Business name"
line. Check the appropriate box for your filing status (sole proprietor,
corporation, etc.), then check the box for "Other" and enter "LLC" in the space
provided.
Other entities. Enter your business name as shown on required federal tax
documents on the "Name" line. This name should match the name shown on the
charter or other legal document creating the entity. You may enter any business,
trade, or DBA name on the "Business name" line.
Note. You are requested to check the appropriate box for your status
(individual/sole proprietor, corporation, etc.).
Exempt From Backup Withholding
If you are exempt, enter your name as described above and check the appropriate
box for your status, then check the "Exempt from backup withholding" box in the
line following the business name, sign and date the form.
Generally, individuals (including sole proprietors) are not exempt from backup
withholding. Corporations are exempt from backup withholding for certain
payments, such as interest and dividends.
Note. If you are exempt from backup withholding, you should still complete this
form to avoid possible erroneous backup withholding. Exempt payees. Backup
withholding is not required on any payments made to the following payees:
1. An organization exempt from tax under section 501(a), any IRA, or a
custodial account under section 403(b)(7) if the account satisfies the
requirements of section 401(f)(2),
2. The United States or any of its agencies or instrumentalities,
3. A state, the District of Columbia, a possession of the United
States, or any of their political subdivisions or instrumentalities,
4. A foreign government or any of its political subdivisions, agencies,
or instrumentalities, or
5. An international organization or any of its agencies or
instrumentalities.
Other payees that may be exempt from backup withholding include:
6. A corporation,
7. A foreign central bank of issue,
8. A dealer in securities or commodities required to register in the
United States, the District of Columbia, or a possession of the United States,
9. A futures commission merchant registered with the Commodity Futures
Trading Commission,
10. A real estate investment trust,
11. An entity registered at all times during the tax year under the
Investment Company Act of 1940,
12. A common trust fund operated by a bank under section 584(a),
13. A financial institution,
14. A middleman known in the investment community as a nominee or
custodian, or
15. A trust exempt from tax under section 664 or described in section
4947.
Form W-9 (Rev. 11-2005) Page 3
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The chart below shows types of payments that may be exempt from backup
withholding. The chart applies to the exempt recipients listed above, 1 through
15.
--------------------------------------------------------------------------------
IF the payment is for . . . THEN the payment is exempt
for . . .
--------------------------------------------------------------------------------
Interest and dividend payments All exempt recipients except
for 9
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Broker transactions Exempt recipients 1 through 13.
Also, a person registered under
the Investment Advisers Act of
1940 who regularly acts as a
broker
--------------------------------------------------------------------------------
Barter exchange transactions Exempt recipients 1 through 5
and patronage dividends
--------------------------------------------------------------------------------
Payments over $600 required Generally, exempt recipients
to be reported and direct 1 through 7 (2)
sales over $5,000 (1)
--------------------------------------------------------------------------------
(1) See Form 1099-MISC, Miscellaneous Income, and its instructions.
(2) However, the following payments made to a corporation (including gross
proceeds paid to an attorney under section 6045(f), even if the attorney is a
corporation) and reportable on Form 1099-MISC are not exempt from backup
withholding: medical and health care payments, attorneys' fees; and payments for
services paid by a federal executive agency.
Part I. Taxpayer Identification
Number (TIN)
Enter your TIN in the appropriate box. If you are a resident alien and you do
not have and are not eligible to get an SSN, your TIN is your IRS individual
taxpayer identification number (ITIN). Enter it in the social security number
box. If you do not have an ITIN, see How to get a TIN below.
If you are a sole proprietor and you have an EIN, you may enter either
your SSN or EIN. However, the IRS prefers that you use your SSN.
If you are a single-owner LLC that is disregarded as an entity separate
from its owner (see Limited liability company (LLC) on page 2), enter your SSN
(or EIN, if you have one). If the LLC is a corporation, partnership, etc., enter
the entity's EIN.
Note. See the chart on page 4 for further clarification of name and TIN
combinations.
How to get a TIN. If you do not have a TIN, apply for one immediately. To apply
for an SSN, get Form SS-5, Application for a Social Security Card, from your
local Social Security Administration office or get this form online at
www.socialsecurity.gov. You may also get this form by calling 1-800-772-1213.
Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to
apply for an ITIN, or Form SS-4, Application for Employer Identification Number,
to apply for an EIN. You can apply for an EIN online by accessing the IRS
website at www.irs.gov/businesses and clicking on Employer ID Numbers under
Related Topics. You can get Forms W-7 and SS-4 from the IRS by visiting
www.irs.gov or by calling 1-800-TAX-FORM (1-800-829-3676).
If you are asked to complete Form W-9 but do not have a TIN, write
"Applied For" in the space for the TIN, sign and date the form, and give it to
the requester. For interest and dividend payments, and certain payments made
with respect to readily tradable instruments, generally you will have 60 days to
get a TIN and give it to the requester before you are subject to backup
withholding on payments. The 60-day rule does not apply to other types of
payments. You will be subject to backup withholding on all such payments until
you provide your TIN to the requester.
Note. Writing "Applied For" means that you have already applied for a TIN or
that you intend to apply for one soon. Caution: A disregarded domestic entity
that has a foreign owner must use the appropriate Form W-8.
Part II. Certification
To establish to the withholding agent that you are a U.S. person, or resident
alien, sign Form W-9. You may be requested to sign by the withholding agent even
if items 1, 4, and 5 below indicate otherwise. For a joint account, only the
person whose TIN is shown in Part I should sign (when required). Exempt
recipients, see Exempt From Backup Withholding on page 2.
Signature requirements. Complete the certification as indicated in 1 through 5
below.
1. Interest, dividend, and barter exchange accounts opened before 1984
and broker accounts considered active during 1983. You must give your correct
TIN, but you do not have to sign the certification.
2. Interest, dividend, broker, and barter exchange accounts opened
after 1983 and broker accounts considered inactive during 1983. You must sign
the certification or backup withholding will apply. If you are subject to backup
withholding and you are merely providing your correct TIN to the requester, you
must cross out item 2 in the certification before signing the form.
3. Real estate transactions. You must sign the certification. You may
cross out item 2 of the certification.
4. Other payments. You must give your correct TIN, but you do not have
to sign the certification unless you have been notified that you have previously
given an incorrect TIN. "Other payments" include payments made in the course of
the requester's trade or business for rents, royalties, goods (other than bills
for merchandise), medical and health care services (including payments to
corporations), payments to a nonemployee for services, payments to certain
fishing boat crew members and fishermen, and gross proceeds paid to attorneys
(including payments to corporations).
5. Mortgage interest paid by you, acquisition or abandonment of secured
property, cancellation of debt, qualified tuition program payments (under
section 529), IRA, Coverdell ESA, Archer MSA or HSA contributions or
distributions, and pension distributions. You must give your correct TIN, but
you do not have to sign the certification.
Form W-9 (Rev. 11-2005) Page 4
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What Name and Number To Give the
Requester
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For this type of account: Give name and SSN of:
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1. Individual The individual
2. Two or more individuals (joint The actual owner of the account
account) or, if combined funds, the first
individual on the account 1
3. Custodian account of a minor The minor 2
(Uniform Gift to Minors Act)
4. a. The usual revocable The grantor-trustee 1
savings trust (grantor is
also trustee)
b. So-called trust account The actual owner 1
that is not a legal or valid
trust under state law
5. Sole proprietorship or The owner 3
single-owner LLC
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For this type of account: Give name and EIN of:
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6. Sole proprietorship or The owner 3
single-owner LLC
7. A valid trust, estate, or Legal entity 4
pension trust
8. Corporate or LLC electing The corporation
corporate status on Form
8832
9. Association, club, religious, The organization
charitable, educational, or
other tax-exempt organization
10. Partnership or multi-member The partnership LLC
11. A broker or registered The broker or nominee nominee
12. Account with the Department The public entity of
Agriculture in the name of
a public entity (such as a
state or local government,
school district, or prison) that
receives agricultural program
payments
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1 List first and circle the name of the person whose number you furnish. If only
one person on a joint account has an SSN, that person's number must be
furnished.
2 Circle the minor's name and furnish the minor's SSN.
3 You must show your individual name and you may also enter your business or
"DBA" name on the second name line. You may use either your SSN or EIN (if you
have one). If you are a sole proprietor, IRS encourages you to use your SSN.
4 List first and circle the name of the legal trust, estate, or pension trust.
(Do not furnish the TIN of the personal representative or trustee unless the
legal entity itself is not designated in the account title.) Also see Special
rules regarding partnerships on page 1.
Note. If no name is circled when more than one name is listed, the number will
be considered to be that of the first name listed.
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Privacy Act Notice
Section 6109 of the Internal Revenue Code requires you to provide your correct
TIN to persons who must file information returns with the IRS to report
interest, dividends, and certain other income paid to you, mortgage interest you
paid, the acquisition or abandonment of secured property, cancellation of debt,
or contributions you made to an IRA, or Archer MSA or HSA. The IRS uses the
numbers for identification purposes and to help verify the accuracy of your tax
return. The IRS may also provide this information to the Department of Justice
for civil and criminal litigation, and to cities, states, the District of
Columbia, and U.S. possessions to carry out their tax laws. We may also disclose
this information to other countries under a tax treaty, to federal and state
agencies to enforce federal nontax criminal laws, or to federal law enforcement
and intelligence agencies to combat terrorism.
You must provide your TIN whether or not you are required to file a tax return.
Payers must generally withhold 28% of taxable interest, dividend, and certain
other payments to a payee who does not give a TIN to a payer. Certain penalties
may also apply.
Exhibit (a)(2)(iv)
THE WILBER CORPORATION
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Guarantee of Signatures. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by a firm that is an
eligible institution because it is a member of a registered national securities
exchange or the National Association of Securities Dealers, Inc., or by a
commercial bank, a trust company, a savings bank, a savings and loan association
or a credit union which has membership in an approved signature guarantee
medallion program. Signatures on this Letter of Transmittal need not be
guaranteed (i) if this Letter of Transmittal is signed by the registered
holder(s) of the shares, which term, for purposes of this document, shall
include any participant in the book-entry transfer facility whose name appears
on a security position listing as the owner of shares, tendered herewith and
such holder(s) have not completed the box entitled "Special Payment
Instructions" or the box entitled "Special Delivery Instructions" on this Letter
of Transmittal or (ii) if the shares are tendered for the account of an eligible
institution. See instruction 6.
2. Delivery of Letter of Transmittal and Shares. This Letter of
Transmittal or, in the case of a book-entry transfer, an agent's message, as
defined below, is to be used either if certificates are to be forwarded herewith
or if delivery of shares is to be made by book-entry transfer pursuant to the
procedures set forth in Section 3 of the Offer to Purchase. Certificates for all
physically delivered shares, or a confirmation of a book-entry transfer into the
depositary's account at the book-entry transfer facility of all shares delivered
electronically, as well as a properly completed and duly executed Letter of
Transmittal, or a manually signed copy thereof, and any other documents required
by this Letter of Transmittal, must be received by the depositary at the address
set forth on the front page of this Letter of Transmittal on or prior to the
expiration date, as defined in the Offer to Purchase. The term "agent's message"
means a message transmitted by the book-entry transfer facility to, and received
by, the depositary and forming a part of the book-entry confirmation, which
states that the book-entry transfer facility has received an express
acknowledgment from the participant in the book-entry transfer facility
tendering the shares, that such participant has received and agrees to be bound
by the terms of this Letter of Transmittal and that The Wilber Corporation may
enforce the agreement against the participant.
The method of delivery of this Letter of Transmittal, share
certificates and all other required documents is at the option and risk of the
tendering stockholder, and delivery will be deemed made only when actually
received by the depositary. If certificates for shares are sent by mail,
registered mail with return receipt requested, properly insured, is recommended.
Except as specifically permitted by Section 6 of the Offer to Purchase,
no alternative or contingent tenders will be accepted. See Section 1 of the
Offer to Purchase. By executing this Letter of Transmittal, or a facsimile
thereof, the tendering stockholder waives any right to receive any notice of the
acceptance for payment of the shares.
3. Inadequate Space. If the space provided herein is inadequate, the
certificate numbers and/or the number of shares should be listed on a separate
signed schedule attached to this Letter of Transmittal.
4. Partial Tenders; Not Applicable to Stockholders Who Tender by
Book-Entry Transfer. If fewer than all the shares represented by any certificate
delivered to the depositary are to be tendered, fill in the number of shares
that are to be tendered in the box entitled "Number of Shares Tendered." In this
case, a new certificate for the remainder of the shares represented by the old
certificate will be sent to the person(s) signing this Letter of Transmittal,
unless otherwise provided in the "Special Payment Instructions" or "Special
Delivery Instructions" boxes on this Letter of Transmittal, as promptly as
practicable following the expiration or termination of the offer. All shares
represented by certificates delivered to the depositary will be deemed to have
been tendered unless otherwise indicated.
5. Indication of Price at Which Shares are Being Tendered. For shares
to be validly tendered, the stockholder must check the box indicating (i) the
price per share at which he or she is tendering shares under "Price (In Dollars)
Per Share at Which Shares Are Being Tendered" in this Letter of Transmittal, or
(ii) that the person is tendering shares at the purchase price determined by The
Wilber Corporation pursuant to the terms of the offering under this heading.
Only one box may be checked. If more than one box is checked or if no box is
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checked, there is no valid tender of shares. A stockholder wishing to tender
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portions of his or her share holdings at different prices must complete a
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separate Letter of Transmittal for each price at which he or she wishes to
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tender each portion of his or her shares. The same shares cannot be tendered,
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unless previously validly withdrawn as provided in Section 4 of the Offer to
Purchase, at more than one price.
6. Signatures on Letter of Transmittal; Stock Powers and Endorsements.
If this Letter of Transmittal is signed by the registered holder(s) of the
shares hereby, the signature(s) must correspond with the name(s) as written on
the face of the certificates without alteration, enlargement or any change
whatsoever.
If any of the shares hereby are held of record by two or more persons,
all persons must sign this Letter of Transmittal.
If any of the shares tendered hereby are registered in different names
on different certificates, it will be necessary to complete, sign and submit as
many separate letters of transmittal as there are different registrations of
certificates.
If this Letter of Transmittal is signed by the registered holder(s) of
the shares tendered hereby, no endorsements of certificates or separate stock
powers are required unless payment of the purchase price is to be made to, or
shares not tendered or not purchased are to be registered in the name of, any
person other than the registered holder(s). Signatures on any such certificates
or stock powers must be guaranteed by an eligible institution. See instruction
1.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the shares tendered hereby, certificates evidencing the
shares tendered hereby must be endorsed or accompanied by appropriate stock
powers, in either case, signed exactly as the name(s) of the registered
holder(s) appear(s) on the certificates for the shares. Signature(s) on any such
certificates or stock powers must be guaranteed by an eligible institution. See
instruction 1.
If this Letter of Transmittal or any certificate or stock power is
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, the person should so indicate when signing, and proper evidence
satisfactory to The Wilber Corporation of the authority of the person so to act
must be submitted.
7. Stock Transfer Taxes. The Wilber Corporation will pay or cause to be
paid any stock transfer taxes with respect to the sale and transfer of any
shares to it or its order pursuant to the offer. If, however, payment of the
purchase price is to be made to, or shares not tendered or not purchased are to
be registered in the name of, any person other than the registered holder(s), or
if tendered shares are registered in the name of any person other than the
person(s) signing this Letter of Transmittal, the amount of any stock transfer
taxes, whether imposed on the registered holder(s), the other person or
otherwise, payable on account of the transfer to the person will be deducted
from the purchase price unless satisfactory evidence of the payment of taxes, or
exemption therefrom, is submitted. See Section 5 of the Offer to Purchase.
Except as provided in this instruction 7, it will not be necessary to affix
transfer tax stamps to the certificates representing shares tendered hereby.
8. Special Payment and Delivery Instructions. If the check for the
purchase price of any shares purchased is to be issued in the name of, and/or
any shares not tendered or not purchased are to be returned to, a person other
than the person(s) signing this Letter of Transmittal or if the check and/or any
certificates for shares not tendered or not purchased are to be mailed to
someone other than the person(s) signing this Letter of Transmittal or to an
address other than that shown above in the box captioned "Description of Shares
Tendered," then the boxes captioned "Special Payment Instructions" and/or
"Special Delivery Instructions" on this Letter of Transmittal should be
completed. Stockholders tendering shares by book-entry transfer will have any
shares not accepted for payment returned by crediting the account maintained by
the stockholder at the book-entry transfer facility from which the transfer was
made.
9. Odd Lots. As described in the Offer to Purchase, if fewer than all
shares validly tendered at or below the purchase price and not withdrawn on or
prior to the expiration date are to be purchased, the shares purchased first
will consist of all shares tendered by any stockholder who owned beneficially as
of the close of business on March 17, 2006, and continues to own beneficially as
of the expiration date, an aggregate of fewer than 100 shares and who validly
and unconditionally tendered all the shares at or below the purchase price,
including by not designating a purchase price as described above. Partial or
conditional tenders of shares will not qualify for this preference. This
preference will not be available unless the box captioned "Odd Lots" in this
Letter of Transmittal is completed.
10. Substitute Form W-9 and Form W-8. The tendering stockholder is
required to provide the depositary with either a correct taxpayer identification
number on Substitute Form W-9, which is provided under "Important Tax
Information" below, or a properly completed Form W-8. Failure to provide the
information on either Substitute Form W-9 or Form W-8 may subject the tendering
stockholder to 28% federal income tax backup withholding on the payment of the
purchase price. The box in Part 2 of Substitute Form W-9 may be checked if the
tendering stockholder has not been issued a taxpayer identification number and
has applied for a number or intends to apply for a number in the near future. If
the box in Part 2 is checked and the depositary is not provided with a taxpayer
identification number by the time of payment, the depositary will withhold 28%
on all payments of the purchase price thereafter until a taxpayer identification
number is provided to the depositary.
11. Requests for Assistance or Additional Copies. Any questions or
requests for assistance may be directed to the dealer manager/information agent
at their telephone number and address listed in the Offer to Purchase. Requests
for additional copies of the Offer to Purchase, this Letter of Transmittal or
other tender offer materials may be directed to the dealer manager/information
agent and copies will be furnished promptly at The Wilber Corporation's expense.
Stockholders may also contact their local broker, dealer, commercial bank or
trust company for assistance concerning the offer.
12. Irregularities. All questions as to the purchase price, the form of
documents, and the validity, eligibility, including time of receipt, and
acceptance of any tender of shares will be determined by The Wilber Corporation,
in its sole discretion, and its determination shall be final and binding. The
Wilber Corporation reserves the absolute right to reject any or all tenders of
shares that it determines are not in proper form or the acceptance for payment
of or payment for shares that may, in the opinion of The Wilber Corporation's
counsel, be unlawful. Except as otherwise provided in the Offer to Purchase, The
Wilber Corporation also reserves the absolute right to waive any of the
conditions to the offer or any defect or irregularity in any tender of shares
and The Wilber Corporation's interpretation of the terms and conditions of the
offer, including these instructions, shall be final and binding. Unless waived,
any defects or irregularities in connection with tenders must be cured within
such time as The Wilber Corporation shall determine. None of The Wilber
Corporation, the dealer manager/information agent, the depositary, or any other
person shall be under any duty to give notice of any defect or irregularity in
tenders, nor shall any of them incur any liability for failure to give any such
notice. Tenders will not be deemed to have been made until all defects and
irregularities have been cured or waived.
IMPORTANT: THIS LETTER OF TRANSMITTAL, OR A MANUALLY SIGNED COPY
THEREOF, TOGETHER WITH CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND
ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE DEPOSITARY, ON OR PRIOR TO
THE EXPIRATION DATE.
IMPORTANT TAX INFORMATION
Under federal income tax law, a stockholder whose tendered shares are
accepted for payment is required to provide the depositary, as payer, with the
stockholder's correct taxpayer identification number on Substitute Form W-9 on
the reverse side of the Letter of Transmittal. If the stockholder is an
individual, the taxpayer identification number is his or her social security
number. For businesses and other entities, the number is the employer
identification number. If the depositary is not provided with the correct
taxpayer identification number or properly completed Substitute Form W-9, the
stockholder may be subject to a $50 penalty imposed by the Internal Revenue
Service. In addition, payments that are made to such stockholder with respect to
shares purchased pursuant to the offer may be subject to backup withholding.
Certain stockholders, including, among others, all corporations and certain
foreign individuals and entities, are not subject to these backup withholding
and reporting requirements. In order for a noncorporate foreign stockholder to
qualify as an exempt recipient, that stockholder must complete and sign a Form
W-8, Certificate of Foreign Status, attesting to that stockholder's exempt
status. The Form W-8 can be obtained from the depositary. Exempt stockholders,
other than noncorporate foreign stockholders, should furnish their taxpayer
identification number, write "Exempt" on the face of the Substitute Form W-9
below and sign, date and return the Substitute Form W-9 to the depositary. See
the enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 (green form) for additional instructions.
If federal income tax backup withholding applies, the depositary is
required to withhold 28% of any payments made to the stockholder. Backup
withholding is not an additional tax. Rather, the federal income tax liability
of persons subject to backup withholding will be reduced by the amount of the
tax withheld. If withholding results in an overpayment of taxes, a refund may be
obtained.
PURPOSE OF SUBSTITUTE FORM W-9 AND FORM W-8
To avoid backup withholding on payments that are made to a stockholder
with respect to shares purchased pursuant to the offer, the stockholder is
required to notify the depositary of his or her correct taxpayer identification
number by completing the Substitute Form W-9 included in this Letter of
Transmittal certifying that the taxpayer identification number provided on
Substitute Form W-9 is correct and that (i) the stockholder has not been
notified by the Internal Revenue Service that he or she is subject to federal
income tax backup withholding as a result of failure to report all interest or
dividends or (ii) the Internal Revenue Service has notified the stockholder that
he or she is no longer subject to federal income tax backup withholding. Foreign
stockholders must submit a properly completed Form W-8 in order to avoid the
applicable backup withholding; provided, however, that backup withholding will
not apply to foreign stockholders subject to 30%, or lower treaty rate,
withholding on gross payments received pursuant to the offer.
WHAT NUMBER TO GIVE THE DEPOSITARY
The stockholder is required to give the depositary the social security
number or employer identification number of the registered owner of the shares.
If the shares are in more than one name or are not in the name of the actual
owner, consult the enclosed Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 (green form) for additional
guidance on which number to report.
Exhibit (a)(2)(v)
THE WILBER CORPORATION
April 4, 2006
Dear Shareholders of The Wilber Corporation:
Over time, The Wilber Corporation's profitable operations have
contributed to the growth of a capital base that exceeds all applicable
regulatory standards and the amount of capital needed to support our banking
business. After evaluating a variety of alternatives to utilize this strong
capital base more effectively and to maximize value to our shareholders, we have
determined that a repurchase of our own shares at this time would be in the best
interests of our shareholders. The board of directors has approved a repurchase
of 650,000 shares of The Wilber Corporation's common stock, or 5.8% of our
11,145,937 outstanding shares. A copy of the Offer to Purchase dated April 4,
2006 is enclosed.
We are conducting the offer through a procedure referred to as a
"Modified Dutch Auction." This procedure allows you to select the price at which
you are willing to sell, or tender, all or part of your shares within a price
range of not more than $11.40 per share and not less than $9.90 per share. Upon
expiration of the offer, we will select the lowest purchase price from those
shares tendered that will allow us to buy 650,000 shares. All shares purchased
in the offer will receive the same purchase price, even those shares that are
tendered below the purchase price. In addition, if you own less than 100 shares
and tender all of your shares at or below the purchase price, you will receive
priority and have all of your shares purchased even if more than 650,000 shares
are tendered. No brokerage fees or commissions will be charged to you if you
tender your shares.
We encourage each shareholder to read carefully the Offer to Purchase
and related materials. Neither The Wilber Corporation nor our board of directors
has made any recommendation whether to tender shares to us and we have not
authorized any person to make such recommendation. You should make your decision
independently after consulting with your advisors.
To assist us with this offer, we have engaged Sandler O'Neill &
Partners, L.P. to serve as our dealer manager and information agent.
Representatives from Sandler O'Neill may contact you by phone to make sure you
have received the Offer to Purchase and related materials and to answer any
questions you may have. If you need information or additional forms, please call
Sandler O'Neill toll free at (800) 635-6851.
Unless otherwise extended, the offer will expire at 5:00 p.m., New York
City Time, on May 4, 2006. We again encourage you to read carefully the enclosed
material.
As always, we appreciate your interest in The Wilber Corporation.
Sincerely,
/s/ Douglas C. Gulotty
Douglas C. Gulotty
President and Chief
Executive Officer
Exhibit (a)(2)(vi)
NOTICE OF GUARANTEED DELIVERY
OF
SHARES OF COMMON STOCK
OF
THE WILBER CORPORATION
This form, or a facsimile hereof, must be used in connection with your
tender of shares if:
(a) the certificates for your shares of common stock of The Wilber
Corporation are not immediately available;
(b) time will not permit the Letter of Transmittal and other
required documents to be delivered to the Depositary on or
before 5:00 p.m., New York City Time, on May 4, 2006 (the
"Expiration Date"); or
(c) the procedures for book-entry transfer cannot be completed on
a timely basis.
This form may be delivered by hand, mail or facsimile transmission to
the Depositary, and must be received by the Depositary, along with a properly
completed Letter of Transmittal on or before the Expiration Date.
The Depositary is:
REGISTRAR AND TRANSFER COMPANY
Facsimile Number: (908) 497-2311
Confirm by Telephone: (800) 525-7686 ext. 2625
For Account Information Call: (800) 368-5948
By Mail or Overnight Delivery:
Registrar and Transfer Company
Attn: Reorg/Exchange Dept.
10 Commerce Drive
Cranford, New Jersey 07016
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Delivery of this form to an address other than as set forth
bove or transmission via facsimile to a number other than one
isted above does not constitute a valid delivery.
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Ladies and Gentlemen:
The undersigned hereby surrenders to Registrar and Transfer Company,
the Depositary, upon the terms and subject to the conditions set forth in the
Offer to Purchase and the Letter of Transmittal, receipt of which are hereby
acknowledged, the number of shares of common stock of The Wilber Corporation set
forth on the reverse side pursuant to the guaranteed delivery procedures
outlined in the section of the Offer to Purchase entitled "Procedure For
Tendering Shares."
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Number of Shares to be Surrendered:
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Certificate Nos. (if available):
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Check box if shares will be surrendered by book-entry transfer.
DTC Account Number:
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Name(s) of Record Holder(s):
---------------------------------------------------
Address:
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Area Code and Telephone Number: ( )
Social Security Number: - - or Tax identification number: -
----------- --------------
Dated:
------------------------------ --------------------------------
--------------------------------
Signature(s)
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GUARANTEE
The undersigned, a member firm of a registered national securities
exchange, a member of the National Association of Securities Dealers, Inc., or a
commercial bank or trust company having an office, branch, or agency in the
United States, hereby guarantees to deliver to the Depositary certificates
representing the shares tendered hereby, in proper form for transfer (or
surrender shares pursuant to the procedure for book-entry transfer into the
Depositary's account at The Depository Trust Company), together with any other
required document, within three business days after the Expiration Date.
Name of Firm:
------------------------- --------------------------------
(authorized signature)
Address:
-----------------------------------------------------------------------
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City State Zip Code
Area Code and Tel. No.: Dated: , 2006
----------------------- ------------------
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This form is not to be used to guarantee signatures. If a signature on a Letter
of Transmittal requires a Medallion Signature Guarantee, such guarantee must
appear in the applicable space provided on the Letter of Transmittal.
Certificates should be sent to the address on the front of this form, and must
be received by Depositary no later than three business days after the Expiration
----------------------------------------
Date.
----
Exhibit (a)(2)(vii)
================================================================================
THE WILBER CORPORATION
ANNOUNCES MODIFIED DUTCH AUCTION
TO PURCHASE UP TO 650,000 SHARES OF OUTSTANDING STOCK
FOR IMMEDIATE RELEASE
================================================================================
Oneonta, New York
DATE: April 4, 2006
FROM: Douglas C. Gulotty, President and CEO
PHONE: 607-433-4172
ONEONTA, NEW YORK: The Wilber Corporation ("GIW")(Amex(R)), the parent
company of Wilber National Bank, today announced that it intends to repurchase
up to 650,000 shares, or approximately 5.8%, of its 11,145,937 shares of common
stock currently outstanding, through a modified Dutch auction issuer tender
offer.
Under the Modified Dutch Auction format, shareholders will have the
opportunity to sell part or all of their shares to the Company at the cash
purchase price selected by the shareholder of not less than $9.90 per share nor
greater than $11.40 per share. Upon expiration of the offer, the Company will
select the lowest purchase price that will permit it to buy the desired number
of shares. All shares purchased will be purchased at the same price, even if
tendered at a lower price. If more than the maximum number of shares sought is
tendered at or below the price, tendering shareholders owning fewer than 100
shares will have their shares purchased without pro-ration and other shares will
be purchased pro rata. Shareholders of record will, in general, be able to
tender their shares free of all brokerage commissions and stock transfer taxes,
if any, which will be paid by Wilber. The offer is not conditioned on a minimum
number of shares being tendered. Wilber will pay for the shares purchased and
for all related fees and expenses out of available funds and cash on hand. The
offer to purchase shares will begin on April 4, 2006 and expire on May 4, 2006,
unless extended. Shares tendered into the offer may be withdrawn at any time
before the expiration date of the offer. On March 17, 2006, the closing sale
price for the Company's common stock as reported on the Amex(R) was $10.00.
Commenting on the tender offer, Douglas C. Gulotty, the Company's
President and Chief Executive Officer said: "Over time, The Wilber Corporation's
profitable operations have contributed to the growth of a capital base that
exceeds all applicable regulatory standards and the amount of capital needed to
support our banking business. After evaluating a variety of alternatives to
utilize this strong capital base more effectively and to maximize value to our
shareholders, we have determined that a repurchase of our own shares at this
time would be in the best interests of our shareholders."
1
NEITHER THE WILBER CORPORATION NOR ITS BOARD OF DIRECTORS MAKES ANY
RECOMMENDATION TO ANY SHAREHOLDER AS TO WHETHER TO TENDER OR REFRAIN FROM
TENDERING ANY OR ALL OF SUCH SHAREHOLDER'S SHARES IN THE OFFER AND HAS NOT
AUTHORIZED ANY PERSON TO MAKE ANY SUCH RECOMMENDATION.
This announcement is neither an offer to purchase nor a solicitation of
an offer to sell shares of The Wilber Corporation's common stock. The offer is
made solely by the Offer to Purchase, dated April 4, 2006, and the related
Letter of Transmittal. Each shareholder is urged to consult his or her tax
advisor as to the particular tax consequences of the tender offer to such
shareholder. The full details of the offer, including complete instructions on
the tender process procedure along with the transmittal forms and other data is
being mailed to shareholders commencing on or about April 4, 2006. You should
read the Offer to Purchase and the Letter of Transmittal carefully because they
contain important information. The documents will be available free of charge at
the website of the United States Securities and Exchange Commission at
www.sec.gov. The documents may also be obtained free of charge from The Wilber
Corporation (607) 432-1700 or from the dealer manager/information agent for the
offer, Sandler O'Neill & Partners, L.P. at (800) 635-6851 and The Wilber
Corporation's website at "www.wilberbank.com."
The Wilber Corporation is a single bank holding company headquartered
in Oneonta, New York serving the financial needs of the communities of the
Western Catskills and Eastern Southern Tier of New York. The Wilber Corporation
is the parent of Wilber National Bank, a national bank chartered in 1874 with 20
branch offices located in Otsego, Delaware, Schoharie, Ulster, Chenango and
Broome Counties and two loan production office located in Kingston and Syracuse,
New York.
NOTE: This press release may contain certain statements which are not historical
facts or which concern the Company's future operations or economic performance
and which are to be considered forward-looking statements. Any such
forward-looking statements are made pursuant to the safe harbor provisions of
the Private Securities Litigation Reform Act of 1995. The Company cautions that
all forward-looking statements involve risk and uncertainties, and that actual
results may differ from those indicated in the forward-looking statements as a
result of various factors, such as changing economic and competitive conditions
and other risk and uncertainties. In addition, any statements in this news
release regarding historical stock price performance are not indicative of or
guarantees of future price performance.
2
Exhibit (a)(2)(viii)
This announcement is neither an offer to purchase nor a solicitation of
an offer to sell shares. The offer is made solely by the offer to purchase,
dated April 4, 2006, and the related letters of transmittal, and any amendments
or supplements thereto. The tender offer is not being made to, nor will tenders
be accepted from or on behalf of, holders of shares in any jurisdiction in which
the making or acceptance of offers to sell shares would not be in compliance
with the laws of that jurisdiction. In any jurisdiction where the securities,
blue sky or other laws require the tender offer to be made by a licensed broker
or dealer, the tender offer shall be deemed to be made on behalf of The Wilber
Corporation by Sandler O'Neill & Partners, L.P., the dealer manager and
information agent for the tender offer, or by one or more registered brokers or
dealers licensed under the laws of that jurisdiction.
NOTICE OF OFFER TO PURCHASE FOR CASH BY
THE WILBER CORPORATION
UP TO 650,000 SHARES OF ITS COMMON STOCK, AT A PURCHASE PRICE NOT
GREATER THAN $11.40 NOR LESS THAN $9.90 PER SHARE
The Wilber Corporation, a New York corporation ("Wilber"), is offering
to purchase for cash up to 650,000 shares of its common stock ("Common Stock"),
par value $0.01 per share, upon the terms and subject to the conditions set
forth in the offer to purchase, dated April 4, 2006 (the "Offer to Purchase")
and the accompanying letter of transmittal (the "Letter of Transmittal"), as
each may be amended and supplemented from time to time. Wilber is inviting its
stockholders to tender their shares at prices specified by the tendering
stockholder that are not greater than $11.40 nor less than $9.90 per share, net
to the seller in cash, without interest, upon the terms and subject to the
conditions of the tender offer.
THE TENDER OFFER IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE
OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL.
THE TENDER OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT
5:00 P.M., NEW YORK CITY TIME, ON TUESDAY, MAY 4, 2006, UNLESS WILBER EXTENDS
THE TENDER OFFER.
THE BOARD OF DIRECTORS OF WILBER HAS APPROVED THE TENDER OFFER.
HOWEVER, NEITHER WILBER NOR ITS BOARD OF DIRECTORS IS MAKING ANY RECOMMENDATION
TO ITS STOCKHOLDERS AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING THEIR
SHARES OR AS TO THE PRICE OR PRICES AT WHICH STOCKHOLDERS MAY CHOOSE TO TENDER
THEIR SHARES. STOCKHOLDERS MUST MAKE THEIR OWN DECISIONS AS TO WHETHER TO TENDER
THEIR SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND THE PRICE OR PRICES AT
WHICH THEY SHOULD TENDER THEIR SHARES. IN SO DOING, STOCKHOLDERS SHOULD READ
CAREFULLY THE INFORMATION IN THE OFFER TO PURCHASE AND IN THE RELATED LETTER OF
TRANSMITTAL, INCLUDING WILBER'S REASONS FOR MAKING THE TENDER OFFER.
Based upon the number of shares tendered and the prices specified by
the tendering stockholders, Wilber will determine, upon the terms and subject to
the conditions of the tender offer, the lowest single price within the $11.40 to
$9.90 range that will allow it to buy 650,000 shares of Common Stock or such
fewer number of shares of Common Stock as are properly tendered within that
price range and not properly withdrawn. Wilber will purchase all shares
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properly tendered, and not properly withdrawn, prior to the "expiration date"
(as defined below) at the relevant purchase price, upon the terms and subject to
the conditions of the tender offer including the "odd lot," proration and
conditional tender provisions described in the Offer to Purchase.
Wilber will not pay any interest on the purchase price for the shares,
regardless of any delay in making payment. Wilber will acquire all shares of
Common Stock acquired in the tender offer at the relevant purchase price
regardless of whether the stockholder selected a lower price. The term
"expiration date" means 5:00 p.m., New York City time, on Tuesday, April 4,
2006, unless and until Wilber, in its sole discretion, shall have extended the
period of time during which the tender offer will remain open, in which event
the term "expiration date" shall refer to the latest time and date at which the
tender offer, as so extended by Wilber, shall expire. Wilber reserves the right,
in its sole discretion, to purchase more than 650,000 shares of Common Stock
pursuant to the tender offer, as described in the Offer to Purchase, and subject
to applicable law.
For purposes of the tender offer, Wilber will be deemed to have
accepted for payment, and therefore purchased, shares properly tendered (and not
properly withdrawn) at or below the relevant purchase price, subject to the odd
lot, proration and conditional tender provisions of the tender offer, only when,
as and if Wilber gives oral or written notice to Registrar and Transfer Company,
the depositary for the tender offer (the "Depositary"), of its acceptance for
payment of shares under the tender offer. Wilber will make payment for shares
tendered and accepted for payment under the tender offer only after timely
receipt by the Depositary of certificates for such shares or of timely
confirmation of a book-entry transfer of such shares into the Depositary's
account at the "book-entry transfer facility" (as defined in the Offer to
Purchase), a properly completed and duly executed Letter of Transmittal or a
manually signed facsimile thereof or in the case of a book-entry transfer, an
"agent's message" (as defined in the Offer to Purchase), and any other documents
required by the Letter of Transmittal.
Upon the terms and subject to the conditions of the tender offer, if
more than 650,000 shares of Common Stock have been properly tendered and not
properly withdrawn prior to the expiration date at prices at or below the
applicable purchase price, Wilber will purchase properly tendered shares of each
class on the following basis:
- First, from all holders of "odd lots" (holders of less than 100
shares of Common Stock) who properly tender all their shares at or below the
purchase price selected by Wilber and do not properly withdraw them before the
expiration date (partial and conditional tenders will not qualify for this
preference);
- Second, on a pro rata basis from all other stockholders who properly
tender shares at or below the applicable purchase price selected by Wilber with
respect to such shares, other than stockholders who tender conditionally and
whose conditions are not satisfied; and
Wilber will return all other tendered shares that it has not purchased
promptly after the expiration date.
Wilber expressly reserves the right, in its sole discretion, to extend
the period of time during which the tender offer is open and thereby delay
acceptance for payment of, and payment for, any shares of Common Stock by giving
oral or written notice of such extension to the Depositary and making a public
announcement thereof no later than 9:00 a.m., New York City time, on the next
business day after the last previously scheduled or announced expiration date.
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During any such extension, all shares of Common Stock previously tendered and
not properly withdrawn will remain subject to the tender offer and to the right
of a tendering stockholder to withdraw such stockholder's shares.
Wilber's management and Board of Directors have thoroughly evaluated
Wilber's operations, financial condition, capital needs, strategy and
expectations for the future and believe that the tender offer is a prudent use
of its financial resources, given its business profile and strategic plan, and
that investing in its own shares is an attractive use of capital and an
efficient means to provide value to its stockholders. Wilber believes that it
has adequate sources of capital to complete the share repurchase, while
operating its business and pursuing strategic opportunities. Following the
purchase of the shares, Wilber believes that funds provided by earnings,
combined with other sources of liquidity, will be fully adequate to meet its
funding needs for the foreseeable future. Upon completion of the Offer to
Purchase, Wilber expects that it and its wholly owned subsidiary, Wilber
National Bank, will continue to maintain the highest regulatory capital
standards. The tender offer represents the opportunity for Wilber to return cash
to stockholders who elect to tender their shares of Common Stock at a premium
over the recent trading prices for the shares without the usual transaction
costs associated with open market sales, while at the same time increasing
non-tendering stockholders' proportionate interest in Wilber and thus in
Wilber's future earnings and assets at no additional cost to them. Wilber
believes the tender offer, if completed, will be accretive to currently
projected earnings per share, although there can be no assurance of this.
Generally, a stockholder will be subject to U.S. federal income
taxation when the stockholder receives cash from Wilber in exchange for the
shares that the stockholder tenders.
Tenders of shares under the tender offer are irrevocable, except that
such shares may be withdrawn at any time prior to the expiration date and,
unless previously accepted for payment by Wilber under the tender offer, may
also be withdrawn at any time after 12:00 Midnight, New York City time, on
Wednesday, May 31, 2006. For such withdrawal to be effective, the Depositary
must timely receive a written, telegraphic or facsimile transmission notice of
withdrawal at its address set forth on the back cover page of the Offer to
Purchase. Stockholders who have submitted multiple Letters of Transmittal with
respect to tenders at different prices must submit separate notices of
withdrawal corresponding to each such Letter of Transmittal previously submitted
in order to properly withdraw their shares. Any such notice of withdrawal must
specify the name of the tendering stockholder, the number of shares to be
withdrawn and the name of the registered holder of such shares.
If the certificates for shares to be withdrawn have been delivered or
otherwise identified to the Depositary, then, before the release of such
certificates, the certificate numbers shown on such certificates must be
submitted to the Depositary and the signature(s) on the notice of withdrawal
must be guaranteed by an "eligible guarantor institution" (as defined in the
Offer to Purchase), unless such shares have been tendered for the account of an
eligible guarantor institution. If shares have been tendered pursuant to the
procedure for book-entry transfer set forth in the Offer to Purchase, any notice
of withdrawal also must specify the name and the number of the account at the
book-entry transfer facility to be credited with the withdrawn shares and must
otherwise comply with such book-entry transfer facility's procedures.
Wilber will determine, in its sole discretion, all questions as to the
form and validity of any notice of withdrawal, including the time of receipt,
and such determination will be final and
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binding. None of Wilber, Registrar and Transfer Company, as the Depositary,
Sandler O'Neill & Partners, L.P., as the information agent/dealer manager, or
any other person will be under any duty to give notification of any defects or
irregularities in any tender or notice of withdrawal or incur any liability for
failure to give any such notification.
The information required to be disclosed by Rule 13e-4(d)(1) under the
Securities Exchange Act of 1934, as amended, is contained in the Offer to
Purchase and is incorporated herein by reference.
Wilber is mailing promptly the Offer to Purchase and the related Letter
of Transmittal to record holders of shares whose names appear on Wilber's
stockholder list and will furnish the Offer to Purchase and the related Letter
of Transmittal to brokers, dealers, commercial banks, trust companies and
similar persons whose names, or the names of whose nominees, appear on the
stockholder list or, if applicable, who are listed as participants in a clearing
agency's security position listing for subsequent transmittal to beneficial
owners of shares.
THE OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION THAT STOCKHOLDERS SHOULD READ CAREFULLY BEFORE MAKING ANY
DECISION WITH RESPECT TO THE TENDER OFFER. Stockholders may obtain additional
copies of the Offer to Purchase and Letter of Transmittal from the dealer
manager/information agent at the address and telephone number set forth below.
The dealer manager/information agent will promptly furnish to stockholders
additional copies of these materials at Wilber's expense.
Please direct any questions or requests for assistance to the dealer
manager/information agent at the telephone number and address set forth below.
Please direct requests for additional copies of the Offer to Purchase, the
Letter of Transmittal or the notices of guaranteed delivery to the dealer
manager/information agent at the telephone number and address set forth below or
view these documents at Wilber's website at "www.wilberbank.com".
Stockholders may also contact their broker, dealer, commercial bank,
trust company or nominee for assistance concerning the tender offer. To confirm
delivery of shares, please contact the Depositary.
The Depositary for the Offer to Purchase is:
Registrar and Transfer Company
10 Commerce Drive
Cranford, New Jersey 07016
Telephone (800) 368-5948
The dealer manager/information agent for the Offer to Purchase is:
Sandler O'Neill & Partners, L.P.
919 Third Avenue, 6th Floor
New York, NY 10022
Telephone: (800) 635-6851
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Exhibit (d)
BRIAN R. WRIGHT
INTANGIBLE PROPERTY TRUST
THIS TRUST AGREEMENTS, dated the 22nd day of December, 2003 is made
between Brian R. Wright, Jupiter, Florida ("Settlor") and Wilber National Bank,
Oneonta, New York ("Trustee").
I, Brian R. Wright, intend by this Agreement to create an irrevocable
trust of the sum of Ten dollars ($10.00), and Trustee is willing to administer
the same in accordance with the terms of this Agreement. I therefore assign,
transfer and deliver such property to Trustee, and trustee hereby acknowledges
the receipt of such property, IN TRUST, to hold, manage, invest and reinvest, to
collect the income therefrom and to distribute the net income and principal in
accordance with the terms of this Agreement.
I. DURING MY LIFETIME.
A. Discretionary Payments for My Benefit. Whenever Trustee deems it
--------------------------------------
necessary or advisable during my lifetime, Trustee may pay so much of the income
from the trust and so much of the principal thereof as may, in its sole
discretion, be necessary or advisable for my support, my health or my comfort
including, but not limited to, payment of income, gift and real estate taxes,
insurance premiums, expenses of medical care, expenses of protecting and
maintaining one or more residences, expenses of independent contractors
providing services to or for my benefit, and wages of employees.
B. Annual Distribution. Upon the distribution date in each calendar
--------------------
year after 2003, Trustee shall distribute the balance of the trust property
(excluding ten dollars ($10.00)) to met. The distribution date for a particular
calendar year shall be the later of: (a) the date that is ninety (90) days after
the last addition to the trust occurring
in the calendar year immediately prior to the particular calendar year, or (b)
March 1st of the particular calendar year. Trustee is not restricted as to the
form or type of assets that must be distributed pursuant to this section.
II. PAYMENTS AT MY DEATH. Upon my death, this trust shall terminate and
Trustee shall distribute all them remaining trust assets to: (a) a revocable
trust which is named as the residuary beneficiary of my Will if I have
established such a trust prior to my death, or (b) to the personal
representative of my estate if no such trust is in existence at my death.
III. TRUSTEE'S COMPENSATION
A. Reasonable Compensation. Trustee shall be entitled to receive
------------------------
reasonable compensation for its services hereunder (which may be taken without
judicial authorization at the time or times permitted under law) and as shall be
agreed to with me. During my lifetime, annual commissions may be charged wholly
to principal or wholly to income or partly to principal and partly to income in
the discretion of Trustee.
B. Reimbursement of Expenses. Trustee shall be entitled to be
---------------------------
reimbursed for all expenses reasonably incurred by it in the administration of
the trust, including legal fees, the fees of investment advisors and other
similar expenses.
IV. TRUST IRREVOCABLE. The trust hereby created is irrevocable, and I
waive all right, power and authority to alter, amend, modify, revoke or
terminate this Agreement.
V. SUCCESSOR TRUSTEE.
A. Trustee Resignation. Any Trustee may resign at any time by an
--------------------
acknowledged instrument delivered to me and to any Trustee appointed to succeed
hereunder.
B. Appointment of Successor Trustee. Whenever there is no acting
-----------------------------------
Trustee, my son, B. RICHARD WRIGHT, shall appoint a successor Trustee other than
2
the Settlor or Settlor's spouse. The successor Trustee shall have all the powers
given the originally named Trustee. No successor Trustee shall be personally
liable for any act or omission or any predecessor. The appointment of a
Successor Trustee shall be in writing signed in the presence of two witnesses
and notarized.
C. Provisions relating to WILBER NATIONAL BANK. In the event that
-----------------------------------------------
Wilber National Bank (Trustee) is no longer owned by The Wilber Corporation, or
there shall be any merger or consolidation of The Wilber Corporation or Wilber
National Bank in which The Wilber Corporation or Wilber National Bank is not the
continuing or surviving corporation, or the stockholders of The Wilber
Corporation or Wilber National Bank approve any plan or proposal for the
liquidation or dissolution of the Wilber Corporation or Wilber National Bank,
then, in that event, the Settlor's son, B. RICHARD WRIGHT shall appoint a
successor Trustee other than Settlor or Settlor's spouse.
VI. GENERAL PROVISIONS AND FIDUCIARY POWERS.
A. Investment Counsel. The Trustee may employ investment counsel;
-------------------
consult with such counsel on any matters relating to the retention, sale,
purchase, investment, or reinvestment of securities or other property; and pay
such investment counsel reasonable compensation for its services in addition to
the regular compensation of Trustee. Trustee may act upon or refrain from acting
upon the advice of such investment counsel in whole or in part.
B. Powers. Trustee shall hold, manage, care for and protect the trust
------
property and shall have the following powers and those now or hereafter
conferred by law:
1. To retain any property (including stock of any corporate Trustee
hereunder or a parent, affiliate, subsidiary or successor of any corporate
Trustee) originally constituting the trust or subsequently added hereto,
although not of a type, quality or diversification considered proper for trust
investments; the Settlor
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specifically relieves Trustee from any liability for loss or diminution of value
for retaining or failing to diversify any shares of stock transferred to the
Trustee during the Settlor's lifetime, regardless of the existence of any
statute requiring such diversification by a fiduciary;
2. To invest and reinvest the trust property in bonds, stocks
(including stocks or bonds of any corporate trustee hereunder or a parent or
affiliate company), mortgages, bank deposits, options, future contracts, general
partnership interests, limited partnership interests, limited liability company
interests, shares of registered investment companies, notes or other property of
any kind, domestic or foreign, suitable for the investment of trust funds,
including any participation in any common trust fund; to deposit or arrange for
the deposit of securities in a central depository;
3. To cause any property belonging to the trust to be held or
registered in Trustee's name or in the name of a nominee or in such other form
as Trustee deems best without disclosing the trust relationship;
4. To vote in person or by general or limited proxy, or refrain from
voting, any corporate securities (including securities of any corporate trustee
hereunder or a parent or affiliate company) for any purpose; to exercise or sell
any subscription or conversion rights; to consent to and join in or oppose any
voting trusts, reorganizations, consolidations, merger, foreclosure and
liquidations and in connection therewith to deposit securities and accept and
hold other property received therefore;
5. To borrow money from any lender, extend or renew any existing
indebtedness and pledge any property in the trust;
6. To sell at public or private sale, contract to sell, convey,
exchange, transfer and otherwise deal with the trust property and any
reinvestments
4
thereof, and to sell put and covered call options, from time to time for such
price and upon such terms as Trustee seems fit;
7. To employ agents, attorneys and proxies and to delegate to them
such powers as Trustee considers desirable;
8. To compromise, contest, prosecute or abandon claims in favor of
or against the trust;
9. To distribute income and principal in cash or in kind, or partly
in each;
10. To determine in cases not covered by statute the allocation of
receipts and disbursements between income and principal;
11. To buy, sell and trade in securities of any nature, including
short sales on margin and, for such purposes, may maintain and operate margin
accounts with brokers and may pledge any securities held or purchased by them
with such brokers as security for loans and advances made to Trustee;
12. To perform other acts necessary or appropriate for the property
administration of the trust, execute and deliver necessary instruments and give
full receipts, and discharges; and
13. Notwithstanding the foregoing provisions of this section,
Trustee shall not purchase, acquire, accept or otherwise receive any real
property in this trust.
C. Accounts. Trustee shall render an account of its receipts and
--------
disbursements and a statement of assets to me within ninety days of the
distribution date.
D. Administration of Trust Independent of Court. No trustee wherever
----------------------------------------------
acting shall be required to give bond or surety or be appointed by or account
for the administration of any trust to any court. No statute with respect to
5
underproductive property shall apply to any trust under this trust instrument. I
recommend that trust registration be neither voluntarily accomplished by Trustee
nor requested by any beneficiary.
E. Reduction or Release of Powers. Trustee shall have the power to
--------------------------------
release or renounce any power, privilege, or right (including this power) or the
power to reduce the scope and extent of any power, privilege or right (including
this power). If there is more than one trustee acting hereunder, this power may
be exercised by any one trustee, individually, or by all the trustee,
collectively.
F. Trustee's Certificate. A certificate signed by any trustee under
----------------------
this instrument and acknowledged by such trustee before a notary public shall be
conclusive evidence upon all persons and for all purposes of the facts stated in
the certificate respecting the terms of this instrument and the identity of the
trustees who from time to time are serving under it.
G. Construction. All article and section headings used are for
------------
convenience only and shall not be resorted to for interpretation of this trust.
Wherever the context so requires, the masculine, feminine or neuter gender shall
include the other two genders, the singular shall include the plural and the
plural shall include the singular.
H. In creating this trust, I intend for the trust and the intangible
personal property comprising the trust property not to be subject to Florida tax
on intangible personal property, and for the trust to qualify under section
12C-2.0063 of the Florida Administrative Code. Accordingly, this Agreement shall
be interpreted, managed, invested, administered and in all other respects
governed consistent with my intent.
I. Governing Law. All aspects of this trust, including such trust's
--------------
validity, construction, and administration shall be governed by the law of the
State of Flordia.
6
J. Additions. I may transfer or assign additional property to Trustee
---------
to be held under this instrument, subject to the approval and acceptance by
Trustee.
K. Discretionary Trust Termination. Whenever, in the sole discretion of
-------------------------------
Trustee, the purposes for which the trust was established can no longer be
effectively carried out because of a change in the law affecting the trust and
its beneficiaries or any other changes in circumstances which makes continuation
of the trust unwarranted, Trustee may terminate such trust. In such event
Trustee shall distribute the then remaining assets of the trust to me.
VII. ACCEPTANCE. Trustee accepts the trust and agrees to perform its
duties hereunder.
IN WITNESS WHEREOF, I have signed this Irrevocable Trust Agreement.
Dated: December 22, 2003 /s/ Brian R. Wright
----------------- -------------------------------------------
BRIAN R. WRIGHT, Settlor
WILBER NATIONAL BANK, Trustee
Dated: December 22, 2003 By: Herbert A. Simmerly
----------------- --------------------------------------
Its: Vice President & Senior Trust Officer
--------------------------------------
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The foregoing instrument was on December 22, 2003, signed, published and
declared by the said Settlor as his Trust in our presence, and we, at his
request and in his presence, and in the presence of each other, have signed our
names as Witnesses on the above date, believing the Settlor to be of sound mind
and memory and not acting under constraint of any kind.
NAME RESIDING AT:
/s/ Lisa R. Taube 8203 SE Cumberland Circle
----------------------------------- -----------------------------------
Witness Hobe Sound, FL 33455
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/s/ Audrey Harris 121 Rockingham Rd.
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Witness Jupiter, FL 33458
-----------------------------------
STATE OF FLORIDA
COUNTY OF PALM BEACH
I, BRIAN R. WRIGHT, declare to the officer taking my acknowledgment of
this instrument, and to the subscribing witnesses, that I signed this instrument
as my Trust.
/s/ Brian R. Wright
----------------------------------
BRIAN R. WRIGHT, Settlor
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