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EXHIBIT 2.3
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AGREEMENT AND PLAN OF MERGER
DATED AS OF
DECEMBER 17, 1999
BY AND BETWEEN
PARK NATIONAL CORPORATION
AND
SNB CORP.
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TABLE OF CONTENTS
PAGE
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ARTICLE ONE -- THE MERGER...................................................2
1.01. Merger; Surviving Corporation...................................2
1.02. Effective Time..................................................2
1.03. Effects of the Merger...........................................2
ARTICLE TWO -- CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES...............2
2.01. Conversion of SNB Shares........................................2
2.02. Exchange of Certificates........................................3
2.03. Park Shares.....................................................8
ARTICLE THREE -- REPRESENTATIONS AND WARRANTIES OF SNB......................9
3.01. Representations and Warranties of SNB...........................9
ARTICLE FOUR -- REPRESENTATIONS AND WARRANTIES OF PARK.....................27
4.01. Representations and Warranties of Park.........................27
ARTICLE FIVE -- FURTHER COVENANTS OF SNB...................................31
5.01. Operation of Business..........................................31
5.02. Notification...................................................35
5.03. Shareholder Approval...........................................36
5.04. Acquisition Proposals..........................................36
5.05. Delivery of Information........................................37
5.06. Affiliates Compliance with the Securities Act..................37
5.07. Takeover Laws..................................................38
5.08 SNB Stock Options..............................................38
ARTICLE SIX -- FURTHER COVENANTS OF PARK...................................38
6.01. Current Information............................................38
6.02. Opportunity of Employment; Employee Benefits...................38
6.03. AMEX Listing...................................................39
6.04. Takeover Laws..................................................39
6.05. Notification...................................................39
6.06 Officers' and Directors' Indemnification.......................40
ARTICLE SEVEN -- FURTHER OBLIGATIONS OF THE PARTIES........................41
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7.01. Necessary Further Action......................................41
7.02. Cooperative Action............................................41
7.03. Satisfaction of Conditions....................................41
7.04. Accounting and Tax Treatment..................................42
7.05. Confidentiality...............................................42
7.06. Press Releases................................................42
7.07. Registration Statement........................................42
7.08. Regulatory Applications.......................................44
7.09. Dividends.....................................................44
7.10. Supplemental Assurances.......................................44
ARTICLE EIGHT -- CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE
PARTIES...................................................................45
8.01. Conditions to the Obligations of Park.........................45
8.02. Conditions to the Obligations of SNB..........................46
8.03. Mutual Conditions.............................................48
ARTICLE NINE -- CLOSING...................................................49
9.01. Closing.......................................................49
9.02. Closing Transactions Required of Park.........................49
9.03. Closing Transactions Required of SNB..........................50
ARTICLE TEN -- NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS.................................................................50
10.01. Non-Survival of Representations, Warranties and Covenants.....50
ARTICLE ELEVEN -- TERMINATION.............................................51
11.01. Termination...................................................51
11.02. Effect of Termination.........................................55
ARTICLE TWELVE -- MISCELLANEOUS...........................................56
12.01. Notices.......................................................56
12.02. Counterparts..................................................57
12.03. Entire Agreement..............................................57
12.04. Successors and Assigns........................................57
12.05. Captions......................................................57
12.06. Governing Law.................................................57
12.07. Payment of Fees and Expenses..................................57
12.08. Amendment.....................................................58
12.09. Waiver........................................................58
12.10. Disclosure Schedules..........................................58
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12.11. No Third-Party Rights.........................................58
12.12. Waiver of Jury Trial..........................................58
12.13. Severability..................................................58
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GLOSSARY OF DEFINED TERMS
The following terms, when used in this Agreement, have the meanings
ascribed to them in the corresponding Sections of this Agreement listed below:
"Agreement" -- Preamble
"AMEX" -- Section 2.02(e)
"Acquisition Proposal" -- Section 5.04
"Average Closing Price of Park Shares" -- Section 2.02(e)
"Bank Real Estate Collateral" -- Section 3.01(y)
"Bank" -- Section 3.01(a)
"BHC Act" -- Section 3.01(a)
"CERCLA" -- Section 3.01(y)
"Closing Date" -- Section 9.01
"Closing" -- Section 9.01
"Code" -- Preamble
"Compensation and Benefit Plans" -- Section 3.01(s)
"Constituent Corporations" -- Preamble
"Consultants" -- Section 3.01(s)
"Costs" -- Section 6.06(a)
"Determination Date" -- Section 11.01(d)
"Directors" -- Section 3.01(s)
"Dissenting Share" -- Section 2.02(k)
"DOL" -- Section 3.01(s)
"Effective Time" -- Section 1.02
"Employees" -- Section 3.01(s)
"Environmental Laws" -- Section 3.01(y)
"ERISA" -- Section 3.01(s)
"ERISA Affiliate" -- Section 3.01(s)
"ERISA Affiliate Plan" -- Section 3.01(s)
"Exchange Act" -- Section 4.01(i)
"Exchange Agent" -- Section 2.02(a)
"Exchange Fund" -- Section 2.02(a)
"Exchange Ratio" -- Section 2.01(b)
"FDIC" -- Section 3.01(o)
"Federal Reserve" -- Section 3.01(k)
"Final Index Price" -- Section 11.01(d)
"Final Price" -- Section 11.01(d)
"GAAP" -- Section 3.01(f)
"Governmental Authority" -- Section 3.01(p)
"Hazardous Substances" -- Section 3.01(y)
"Indemnified Party" -- Section 6.06(a)
"Index Group" -- Section 11.01(d)
"Index Price" -- Section 11.01(d)
"Initial Index Price" -- Section 11.01(d)
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"Insurance Amount" -- Section 6.06(b)
"IRS" -- Section 3.01(l)
"Loan Assets" -- Section 3.01(i)
"Loan Documentation" -- Section 3.01(i)
"material adverse effect" -- Section 3.01(a)
"material" -- Section 3.01(a)
"Merger Shares" -- Section 2.01(b)
"Merger" -- Preamble
"OCC" -- Section 3.01(k)
"Officers" -- Section 3.01(s)
"OGCL" -- Section 1.01
"Park" -- Preamble
"Park Balance Sheet Date" -- Section 4.01(f)
"Park Disclosure Schedule" -- Preamble
"Park Shares" -- Preamble
"PBGC" -- Section 3.01(s)
"PCBs" -- Section 3.01(y)
"Pension Plan" -- Section 3.01(s)
"Proxy/Prospectus" -- Section 7.07(a)
"Registration Statement" -- Section 7.07(a)
"Regulatory Authorities" -- Section 3.01(o)
"Rule 145 Affiliates" -- Section 5.06(a)
"SEC" -- Section 3.01(c)
"Secretary of State" -- Section 1.02
"Securities Act" -- Section 3.01(u)
"SNB" -- Preamble
"SNB Balance Sheet Date" -- Section 3.01(f)
"SNB Certificates" -- Section 2.02(a)
"SNB Disclosure Schedule" -- Preamble
"SNB Financial Statements" -- Section 3.01(f)
"SNB Meeting" -- Section 5.03(b)
"SNB Proxy Statement" -- Section 5.03(b)
"SNB Real Properties" -- Section 3.01(m)
"SNB Shares" -- Preamble
"SNB Shareholders' Approval" -- Section 11.01(b)
"SNB Stock Option Plan" -- Section 3.01(b)
"SNB Stock Options" -- Section 3.01(b)
"Starting Date" -- Section 11.01(d)
"Starting Price" -- Section 11.01(d)
"Subsidiary" -- Section 3.01(c)
"Surviving Corporation" -- Section 1.01
"Takeover Laws" -- Section 3.01(aa)
"Tax Returns" -- Section 3.01(l)
"Tax" -- Section 3.01(l)
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"Total SNB Shares Outstanding or
Subject to Options" -- Section 2.01(b)
"trading days" -- Section 2.02(e)
"Updated Park Disclosure Schedule" -- Section 6.05
"Updated SNB Disclosure Schedule" -- Section 5.02
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AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as
of December 17, 1999, is made and entered into by and between Park National
Corporation, an Ohio corporation ("Park"), and SNB Corp., an Ohio corporation
("SNB") (Park and SNB are sometimes hereinafter collectively referred to as the
"Constituent Corporations").
W I T N E S S E T H:
WHEREAS, the Boards of Directors of SNB and Park have each
determined that it is in the best interests of their respective corporations and
shareholders for SNB to merge with and into Park (the "Merger"), upon the terms
and subject to the conditions set forth in and pursuant to the terms of this
Agreement; and
WHEREAS, the Boards of Directors of SNB and Park have each
approved this Agreement and the consummation of the transactions contemplated
hereby; and
WHEREAS, as a result of the Merger, in accordance with the
terms of this Agreement, SNB will cease to have a separate corporate existence,
and shareholders of SNB will receive from Park in exchange for each common
share, without par value, of SNB (the "SNB Shares"), the number of common
shares, without par value, of Park (the "Park Shares") calculated in accordance
with the terms of this Agreement; and
WHEREAS, it is the intention of SNB and Park that the Merger
contemplated by this Agreement be accounted for under the "pooling-of-interests"
accounting method; and
WHEREAS, for Federal income tax purposes, it is intended that
the Merger contemplated by this Agreement qualify as a "reorganization" under
the provisions of Section 368(a) of the Internal Revenue Code of 1986, as
amended (the "Code"); and
WHEREAS, SNB has previously provided to Park a schedule
disclosing additional information about SNB (the "SNB Disclosure Schedule"); and
WHEREAS, Park has previously provided to SNB a schedule
disclosing additional information about Park (the "Park Disclosure Schedule");
NOW, THEREFORE, in consideration of the premises and the
respective representations, warranties, covenants, agreements and conditions
hereinafter set forth, SNB and Park, intending to be legally bound hereby, agree
as follows:
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ARTICLE ONE
THE MERGER
1.01. MERGER; SURVIVING CORPORATION
Upon the terms and subject to the conditions of this
Agreement, at the Effective Time (as defined in Section 1.02), SNB shall merge
with and into Park in accordance with the General Corporation Law of the State
of Ohio (the "OGCL"). Park shall be the continuing and surviving corporation in
the Merger, shall continue to exist under the laws of the State of Ohio, and
shall be the only one of the Constituent Corporations to continue its separate
corporate existence after the Effective Time. As used in this Agreement, the
term "Surviving Corporation" refers to Park at and after the Effective Time. As
a result of the Merger, the outstanding shares of capital stock and the treasury
shares of the Constituent Corporations shall be converted in the manner provided
in Article Two.
1.02. EFFECTIVE TIME
The Merger shall become effective upon the later of (a) the
filing of the appropriate certificate of merger with the Secretary of State of
the State of Ohio (the "Secretary of State") or (b) such time thereafter as is
agreed to in writing by Park and SNB and so provided in the certificate of
merger. The date and time at which the Merger shall become effective is referred
to in this Agreement as the "Effective Time."
1.03. EFFECTS OF THE MERGER
At the Effective Time:
(a) the Articles of Incorporation of Park as in effect
immediately prior to the Effective Time shall be the
articles of the Surviving Corporation;
(b) the Regulations of Park as in effect immediately
prior to the Effective Time shall be the regulations
of the Surviving Corporation; and
(c) the Merger shall have the effects prescribed in the
OGCL.
ARTICLE TWO
CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES
2.01. CONVERSION OF SNB SHARES
At the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof:
(a) Conversion of SNB Shares. Subject to Sections 2.01(c)
and 2.02, each SNB Share issued and outstanding
immediately prior to the Effective Time shall be
converted into that number of fully paid and
non-assessable
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Park Shares equal to the Exchange Ratio as defined in
Section 2.01(b) of this Agreement. After the
Effective Time, all such SNB Shares shall no longer
be outstanding and each certificate previously
representing any SNB Shares shall thereafter
represent the Park Shares into which such SNB Shares
have been converted. Certificates previously
representing SNB Shares shall be exchanged for
certificates representing whole Park Shares (and cash
in lieu of fractional Park Share interests) issued in
consideration therefor upon the surrender of such
certificates in accordance with Section 2.02, without
interest.
(b) Exchange Ratio.
(i) The Exchange Ratio shall be equal to:
835,500 (THE "MERGER SHARES")
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Total SNB Shares Outstanding or Subject to
Options (as defined in Section 2.01(b)(ii))
The Exchange Ratio shall be rounded to the
nearest hundredth.
(ii) "Total SNB Shares Outstanding or Subject to
Options" shall mean the sum of (A) the total
number of SNB Shares issued and outstanding
immediately prior to the Effective Time (other
than SNB Shares held in treasury by SNB) plus
(B) the total number of SNB Shares which are
subject to an SNB Stock Option (as defined in
Section 3.01(b)) immediately prior to the
Effective Time.
(iii) The Exchange Ratio shall be subject to
adjustment in accordance with Section 2.02(l).
(c) Cancellation of Treasury Shares; SNB Shares Owned by
Park. All SNB Shares held by SNB as treasury shares
shall be cancelled and retired and shall cease to
exist and no Park Shares or other consideration shall
be delivered in exchange therefor. All SNB Shares, if
any, that are beneficially owned by Park shall become
treasury shares of the Surviving Corporation.
2.02. EXCHANGE OF CERTIFICATES
(a) Exchange Agent. At or prior to the Effective Time,
Park shall deposit, or shall cause to be deposited,
with First-Knox National Bank (the "Exchange Agent"),
for the benefit of the holders of certificates which
immediately prior to the Effective Time evidenced SNB
Shares (the "SNB Certificates"), for exchange in
accordance with this Article Two, certificates
representing Park Shares and an estimated amount of
cash
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necessary to pay cash in lieu of fractional Park
Share interests in accordance with Section 2.02(e)
(such certificates for Park Shares, together with any
dividends or distributions with a record date
occurring on or after the Effective Time with respect
thereto, and such cash for fractional Park Share
interests being hereinafter referred to as the
"Exchange Fund") issuable pursuant to Section 2.01 in
exchange for such SNB Shares.
(b) Exchange Procedures. As soon as reasonably
practicable after the Effective Time, the Surviving
Corporation shall cause the Exchange Agent to mail to
each holder of record of SNB Shares immediately prior
to the Effective Time, (i) a letter of transmittal
(which shall specify that delivery shall be effected,
and risk of loss and title to the SNB Certificates
shall pass, only upon delivery of such SNB
Certificates to the Exchange Agent, and which shall
be in such form and have such other provisions as the
Surviving Corporation may reasonably specify) and
(ii) instructions for use in effecting the surrender
of the SNB Certificates in exchange for certificates
representing Park Shares and cash in lieu of
fractional Park Share interests. Upon surrender by
such holder of an SNB Certificate or Certificates
evidencing all SNB Shares standing in such holder's
name for cancellation to the Exchange Agent together
with such letter of transmittal, duly executed, the
holder of such SNB Certificate or Certificates shall
be entitled to receive in exchange therefor a
certificate representing the number of whole Park
Shares, and/or a check in respect of any fractional
Park Share interests, which such holder has the right
to receive in respect of the SNB Certificate or
Certificates surrendered pursuant to the provisions
of this Article Two (after taking into account all
SNB Shares then held by such holder), and the SNB
Certificate or Certificates so surrendered shall
forthwith be canceled. In the event of a transfer of
ownership of SNB Shares which is not registered in
the transfer records of SNB, a certificate
representing the proper number of Park Shares, and/or
a check in respect of any fractional Park Share
interests, may be issued to a transferee if the SNB
Certificate representing such SNB Shares is presented
to the Exchange Agent, accompanied by all documents
required to evidence and effect such transfer and by
evidence that any applicable share transfer taxes
have been paid. Until surrendered as contemplated by
this Section 2.02, each SNB Certificate shall be
deemed at any time after the Effective Time for all
corporate purposes (except as provided in Section
2.02(c)) to represent only the number of whole Park
Shares into which the SNB Shares represented by such
SNB Certificate have been converted as provided in
this Article Two and the right to receive upon such
surrender cash in lieu of any fractional Park Share
interests as contemplated by this Section 2.02.
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(c) Distributions with Respect to Unexchanged Shares;
Voting.
(i) Dividends or other distributions declared or
made after the Effective Time with respect
to Park Shares with a record date after the
Effective Time shall be paid to the holder
of any unsurrendered SNB Certificate with
respect to the Park Shares represented
thereby, and any cash payment in lieu of
fractional Park Shares shall be paid to any
such holder pursuant to Section 2.02(e),
only after surrender of such SNB Certificate
by the holder thereof. Subject to the effect
of applicable laws, following surrender of
any such SNB Certificate, there shall be
paid to the holder of the certificates
representing whole Park Shares issued in
exchange therefor, without interest, (A) as
promptly as practicable after the time of
such surrender, the amount of any cash
payable with respect to a fractional Park
Share interest to which such holder is
entitled pursuant to Section 2.02(e) and the
amount of dividends or other distributions
with a record date after the Effective Time
theretofore paid (but withheld pursuant to
the immediately preceding sentence) with
respect to such whole Park Shares, and (B)
at the appropriate payment date, the amount
of dividends or other distributions with a
record date after the Effective Time but
prior to surrender and a payment date
subsequent to surrender payable with respect
to such whole Park Shares.
(ii) Former holders of record as of the Effective
Time of SNB Shares shall not be entitled to
vote the Park Shares into which their SNB
Shares shall have been converted on matters
submitted to the shareholders of Park until
the SNB Certificates formerly representing
such SNB Shares shall have been surrendered
in accordance with this Section 2.02 or
certificates evidencing such Park Shares
shall have been issued in exchange therefor.
(d) No Further Ownership Rights in SNB Shares. All Park
Shares issued upon conversion of SNB Shares in
accordance with the terms hereof (including any cash
paid pursuant to Section 2.02(c) or 2.02(e)) shall be
deemed to have been issued in full satisfaction of
all rights pertaining to such SNB Shares, subject,
however, to the Surviving Corporation's obligation to
pay any dividends or make any other distributions
with a record date prior to the Effective Time which
may have been declared or made by SNB on such SNB
Shares in accordance with the terms of this Agreement
on or prior to the Effective Time and which remain
unpaid at the Effective Time. If, after the Effective
Time, SNB Certificates are presented to the Surviving
Corporation for any reason, they shall be canceled
and exchanged as provided in this Article Two.
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(e) No Fractional Park Shares.
(i) No certificates or scrip representing
fractional Park Shares shall be issued upon
the surrender for exchange of SNB
Certificates evidencing SNB Shares, and such
fractional Park Share interests will not
entitle the owner thereof to vote or to any
rights of a shareholder of the Surviving
Corporation.
(ii) Each holder of SNB Shares who would
otherwise be entitled to receive a
fractional Park Share shall receive from the
Exchange Agent an amount of cash equal to
the product obtained by multiplying (a) the
fractional Park Share interest to which such
holder (after taking into account all SNB
Shares held at the Effective Time by such
holder) would otherwise be entitled by (b)
the Average Closing Price of Park Shares (as
defined below in Section 2.02(e)(iii)
below). No interest shall be payable with
respect to such cash payment.
(iii) The "Average Closing Price of Park Shares"
shall mean the average of the closing sale
prices of a Park Share on the American Stock
Exchange ("AMEX") (as reported in The Wall
Street Journal or, if not reported therein,
in another authoritative source) during the
period of 20 trading days (as hereinafter
defined in this Section 2.02(e)(iii)) ending
on the trading day prior to the date on
which the waiting period expires following
the last required approval of a Governmental
Authority (as defined in Section 3.01(p)
below) with respect to the Merger. As used
in this Agreement, "trading days" shall mean
days on which actual trades of Park Shares
occur.
(f) Termination of Exchange Fund. Any portion of the
Exchange Fund which remains undistributed to the
shareholders of SNB for six months after the
Effective Time shall be delivered to the Surviving
Corporation, upon demand, and any shareholders of SNB
who have not theretofore complied with this Article
Two shall thereafter look only to the Surviving
Corporation for payment of their claim for Park
Shares, any cash in lieu of fractional Park Share
interest and any dividends or distributions with
respect to Park Shares, in each case without
interest.
(g) No Liability. None of Park, SNB, the Exchange Agent
or the Surviving Corporation shall be liable to any
former holder of SNB Shares for Park Shares (or
dividends or distributions with respect thereto) or
cash in lieu of fractional Park Share interest
delivered to a public official pursuant to any
applicable abandoned property, escheat or similar
law.
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(h) Share Transfer Books. Unless otherwise required by
Section 1701.85 of the OGCL, after the Effective Time
there shall be no further registration of transfers
on the share transfer books of the Surviving
Corporation of the SNB Shares which were outstanding
immediately prior to the Effective Time.
(i) Lost Certificates. If there shall be delivered to the
Exchange Agent by any person who is unable to produce
any SNB Certificate for SNB Shares for surrender to
the Exchange Agent in accordance with this Section
2.02:
(a) Evidence to the satisfaction of the
Surviving Corporation that such SNB
Certificate has been lost, wrongfully taken,
or destroyed;
(b) Such security or indemnity as may be
requested by the Surviving Corporation to
save it harmless (which shall not include
the requirement to obtain a third party bond
or surety); and
(c) Evidence to the satisfaction of the
Surviving Corporation that such person was
the owner of the SNB Shares theretofore
represented by each such SNB Certificate
claimed by him to be lost, wrongfully taken
or destroyed and that he is the person who
would be entitled to present such SNB
Certificate for exchange pursuant to this
Agreement;
then the Exchange Agent, in the absence of actual
notice to it that any SNB Shares theretofore
represented by any such SNB Certificate have been
acquired by a bona fide purchaser, shall deliver to
such person the Park Shares (and cash in lieu of
fractional Park Share interests) that such person
would have been entitled to receive upon surrender of
each such lost, wrongfully taken or destroyed SNB
Certificate.
(j) Waiver. The Surviving Corporation may from time to
time, in the case of one or more persons, waive one
or more of the rights provided to it in this Article
Two to withhold certain payments, deliveries and
distributions; and no such waiver shall constitute a
waiver of its rights thereafter to withhold any such
payment, delivery or distribution in the case of any
person.
(k) SNB Dissenters' Rights. Anything contained in this
Agreement or elsewhere to the contrary
notwithstanding, if any holder of an outstanding SNB
Share shall properly exercise dissenters' rights with
respect thereto in accordance with Section 1701.85 of
the OGCL (a "Dissenting Share"), then:
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(i) Each such Dissenting Share shall
nevertheless be deemed to be extinguished at
the Effective Time as provided elsewhere in
this Agreement;
(ii) Each person perfecting such dissenter's
rights shall thereafter have only such
rights (and shall have such obligations) as
are provided in Section 1701.85 of the OGCL,
and the Surviving Corporation shall not be
required to deliver any Park Shares or cash
payments to such person in substitution for
each such Dissenting Share in accordance
with this Agreement; provided, however, that
if any such person shall have failed to
perfect or shall withdraw or lose such
holder's rights under division (D) of
Section 1701.85 of the OGCL, each such
holder's Dissenting Shares shall thereupon
be deemed to have been converted as of the
Effective Time into the right to receive
Park Shares and cash in lieu of fractional
Park Share interests in accordance with the
Exchange Ratio, without any interest
thereon, pursuant to Section 2.01.
No holder of Dissenting Shares shall be entitled to
submit a letter of transmittal, and any letter of
transmittal submitted by a holder of Dissenting
Shares shall be invalid.
(l) Changes in Park Shares. In the event Park changes (or
establishes a record date for changing) the number of
Park Shares issued and outstanding prior to the
Effective Time as a result of a share split, share
dividend, recapitalization or similar transaction
with respect to the outstanding Park Shares and the
record date therefor shall be prior to the Effective
Time, or exchanges the Park Shares for a different
number or kind of shares or securities or is involved
in any transaction resulting in any of the foregoing,
the Exchange Ratio shall be proportionately adjusted.
2.03. PARK SHARES
All Park Shares, if any, that are owned directly by SNB shall
become treasury shares of the Surviving Corporation. Each other Park Share
issued and outstanding immediately prior to the Effective Time shall continue to
be issued and outstanding and unaffected by the Merger. Each Park Share held by
Park in treasury shall continue to be a treasury share of the Surviving
Corporation.
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ARTICLE THREE
REPRESENTATIONS AND WARRANTIES OF SNB
3.01. REPRESENTATIONS AND WARRANTIES OF SNB
SNB hereby represents and warrants to Park that:
(a) Corporate Status. SNB is an Ohio corporation and a
bank holding company registered under the Bank
Holding Company Act of 1956, as amended (the "BHC
Act"); is duly organized, validly existing and in
good standing under the laws of Ohio; and has the
full corporate power and authority to own its
property, to carry on its business as presently
conducted, and to enter into and, subject to the
required adoption of this Agreement by the SNB
shareholders and the obtaining of appropriate
regulatory approvals, perform its obligations under
this Agreement and consummate the transactions
contemplated by this Agreement. Copies of the
articles of incorporation and regulations of SNB and
all amendments thereto have been delivered to Park by
SNB in Section 3.01(a) of the SNB Disclosure
Schedule. Second National Bank (the "Bank") is the
only Subsidiary (as that term is defined in Section
3.01(c)). The Bank is a national banking association;
is duly organized, validly existing and in good
standing under the laws of the United States of
America; and has the full corporate power and
authority to own its property, and to carry on its
business as presently conducted. Neither SNB nor the
Bank is qualified to do business in any other
jurisdiction or is required to be qualified to do
business in any other jurisdiction except where the
failure to be so qualified would not have a material
adverse effect on SNB or the Bank. Copies of the
articles of association and by-laws of the Bank and
all amendments thereto have been delivered to Park in
Section 3.01(a) of the SNB Disclosure Schedule. As
used in this Agreement, (i) any reference to any
event, change or effect being "material" with respect
to any entity means an event, change or effect which
is material in relation to the condition (financial
or otherwise), properties, assets, liabilities,
businesses or results of operations of such entity
and its subsidiaries taken as a whole and (ii) the
term "material adverse effect" means, with respect to
an entity, a material adverse effect on the condition
(financial or otherwise), properties, assets,
liabilities, businesses or results of operations of
such entity and its subsidiaries taken as a whole or
on the ability of such entity to perform without
material delay its obligations under this Agreement
or consummate the Merger and the other material
transactions contemplated by this Agreement.
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(b) Capitalization of SNB.
(i) The authorized capital of SNB consists
solely of 750,000 common shares, without par
value, all of which are SNB Shares, of which
155,626 SNB Shares are issued and
outstanding and 10,522 SNB Shares are held
in treasury by SNB. All outstanding SNB
Shares have been duly authorized and are
validly issued, fully paid and
non-assessable, and were not issued in
violation of the preemptive rights of any
person. All SNB Shares issued within the
last three years have been issued in
compliance with all applicable federal and
state securities laws. As of the date of
this Agreement, 32 SNB Shares were reserved
for issuance upon the exercise of
outstanding stock options (the "SNB Stock
Options") granted under the SNB Corp.
Nonqualified Stock Option Plan (the "SNB
Stock Option Plan"). SNB has furnished to
Park a true, complete and correct copy of
the SNB Stock Option Plan and a list of all
participants therein which identifies the
number of SNB Shares subject to SNB Stock
Options held by each participant, the
exercise price or prices of such SNB Stock
Options and the dates each SNB Stock Option
was granted, becomes exercisable and
expires.
(ii) As of the date of this Agreement, except for
this Agreement and the SNB Stock Options,
there are no options, warrants, calls,
rights, commitments or agreements of any
character to which SNB is a party or by
which it is bound obligating SNB to issue,
deliver or sell, or cause to be issued,
delivered or sold, any additional SNB Shares
or obligating SNB to grant, extend or enter
into any such option, warrant, call, right,
commitment or agreement. As of the date of
this Agreement, there are no outstanding
contractual obligations of SNB to
repurchase, redeem or otherwise acquire any
SNB Shares except for such obligations
arising under the SNB Stock Option Plan.
(iii) Except as disclosed in Section 3.01(b) of
the SNB Disclosure Schedule, since September
30, 1997, SNB has not (A) issued or
permitted to be issued any SNB Shares, or
securities exercisable for or convertible
into SNB Shares, other than the SNB Stock
Options granted prior to the date hereof
under the SNB Stock Option Plan; (B)
repurchased, redeemed or otherwise acquired,
directly or indirectly through the Bank or
otherwise, any SNB Shares; or (C) declared,
set aside, made or paid to the shareholders
of SNB dividends or other distributions on
the outstanding SNB Shares, other than
regular semi-annual cash dividends on the
SNB
-10-
18
Shares at a rate not in excess of the
regular semi-annual cash dividends most
recently declared by SNB prior to the date
of this Agreement.
(c) Subsidiaries. The Bank is the only Subsidiary of SNB.
SNB owns of record and beneficially all of the issued
and outstanding equity securities of the Bank. There
are no options, warrants, calls, rights, commitments
or agreements of any character to which SNB or the
Bank is a party or by which either of them is bound
obligating the Bank to issue, deliver or sell, or
cause to be issued, delivered or sold, additional
equity securities of the Bank (other than to SNB) or
obligating SNB or the Bank to grant, extend or enter
into any such option, warrant, call, right,
commitment or agreement. There are no contracts,
commitments, understandings or arrangements relating
to SNB's rights to vote or to dispose of the equity
securities of the Bank which it owns. All of the
equity securities of the Bank held by SNB are fully
paid and non-assessable (except pursuant to 12 U.S.C.
Section 55) and are owned by SNB free and clear of
any charge, mortgage, pledge, security interest,
hypothecation, restriction, claim, option, lien,
encumbrance or interest of any persons whatsoever.
SNB does not own beneficially, directly or
indirectly, any equity securities or similar
interests of any person, or any interest in a
partnership or joint venture of any kind, other than
the Bank.
For purposes of this Agreement, "Subsidiary" has the
meaning ascribed to it in Rule 1-02 of Regulation S-X
promulgated by the Securities and Exchange Commission
(the "SEC").
(d) Corporate Proceedings. All corporate proceedings of
SNB necessary to authorize the execution, delivery
and performance of this Agreement and the
consummation of the transactions contemplated hereby
by SNB have been duly and validly taken, except for
the adoption of this Agreement by the holders of a
majority of the outstanding SNB Shares entitled to
vote thereon (which is the only required shareholder
vote thereon). The Board of Directors of SNB has
recommended adoption of this Agreement by the
shareholders of SNB and directed that this Agreement
be submitted to the shareholders of SNB for their
approval. This Agreement has been validly executed
and delivered by duly authorized officers of SNB. The
Board of Directors of SNB has received the written
opinion of McDonald Investments, Inc. to the effect
that as of the date hereof, the consideration to be
received by the holders of SNB Shares in the Merger
is fair to the holders of SNB Shares from a financial
point of view.
(e) Authorized and Effective Agreement. This Agreement
constitutes the legal, valid and binding obligation
of SNB, enforceable against SNB in
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19
accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar
laws relating to or affecting the enforcement of
creditors' rights generally, by general equitable
principles (regardless of whether enforceability is
considered in a proceeding in equity or at law) and
by an implied covenant of good faith and fair
dealing. SNB has the absolute and unrestricted right,
power, authority and capacity to execute and deliver
this Agreement and, subject to the required adoption
of this Agreement by the SNB shareholders, the
obtaining of appropriate regulatory approvals and the
expiration of applicable regulatory waiting periods,
to perform its obligations under this Agreement.
(f) Financial Statements of SNB. SNB has furnished to
Park accurate and complete copies of consolidated
financial statements of SNB consisting of (i)
consolidated balance sheets as of December 31, 1998
and 1997, and the related consolidated statements of
income, changes in shareholders' equity and cash
flows for the three years ended December 31, 1998,
including accompanying notes and the report thereon
of Crowe, Chizek and Company LLP and (ii) the
unaudited consolidated balance sheets as of September
30, 1999 (the "SNB Balance Sheet Date") and
consolidated statements of income and cash flows for
the nine months then ended (collectively, all of such
consolidated financial statements are referred to as
the "SNB Financial Statements"). The SNB Financial
Statements were prepared in accordance with generally
accepted accounting principles ("GAAP") applied on a
consistent basis and present fairly, in all material
respects, the consolidated financial condition of SNB
at the dates, and the consolidated results of
operations and cash flows for the periods, stated
therein; subject, in the case of the interim
statements, to normal year-end audit adjustments
which are not expected to be, individually or in the
aggregate, materially adverse to SNB and the absence
of full footnotes.
(g) Absence of Undisclosed Liabilities. Except as
disclosed in Section 3.01(g) of the SNB Disclosure
Schedule, neither SNB nor the Bank had any debt,
obligation, guarantee or liability at the SNB Balance
Sheet Date, whether absolute, accrued, contingent or
otherwise that would be required to be reflected on
and reserved against in the SNB Financial Statements
or in the notes thereto except for debts,
obligations, guarantees or liabilities which,
individually or in the aggregate, do not exceed
$50,000. Except as disclosed in Section 3.01(g) of
the SNB Disclosure Schedule, all debts, liabilities,
guarantees and obligations of SNB and the Bank
incurred since the SNB Balance Sheet Date have been
incurred in the ordinary course of business and are
usual and normal in amount both individually and in
the aggregate. Except as disclosed in Section 3.01(g)
of the SNB Disclosure
-12-
20
Schedule, neither SNB nor the Bank is in material
default or breach of any material agreement to which
SNB or the Bank is a party.
(h) Absence of Changes. Except as set forth in Section
3.01(h) of the SNB Disclosure Schedule, since the SNB
Balance Sheet Date: (i) there has not been any
material adverse change in the business, operations,
assets or financial condition of SNB and the Bank
taken as a whole, and, to the knowledge of SNB, no
fact or condition exists which SNB believes will
cause such a material adverse change in the future;
and (ii) SNB has not taken or permitted any of the
actions described in Section 5.01(b) of this
Agreement.
(i) Loan Documentation. To the knowledge of SNB, the
documentation ("Loan Documentation") governing or
relating to the loan and credit-related assets ("Loan
Assets") representing the loan portfolio of the Bank
is legally sufficient for the purposes intended
thereby and creates enforceable rights of the Bank in
accordance with the terms of such Loan Documentation,
subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting the
enforcement of creditors' rights generally, by
general equitable principles (regardless of whether
enforceability is considered in a proceeding in
equity or at law) and by an implied covenant of good
faith and fair dealing. Except as set forth in
Section 3.01(i) of the SNB Disclosure Schedule, no
debtor under any of the Loan Documentation has
asserted any claim or defense with respect to the
subject matter thereof. Except as set forth in
Section 3.01(i) of the SNB Disclosure Schedule, the
Bank is not a party to a loan, including any loan
guaranty, with any director, executive officer or
five percent (5%) shareholder of SNB or the Bank or
any person, corporation or enterprise controlling,
controlled by or under common control with either SNB
or the Bank. All loans and extensions of credit that
have been made by the Bank and that are subject
either to Sections 22(g) or 22(h) of the Federal
Reserve Act, as amended, or to 12 C.F.R. Part 215
(Regulation O), comply therewith.
(j) Allowance for Loan Losses. Except as set forth in
Section 3.01(j) of the SNB Disclosure Schedule, there
is no loan which was made by the Bank and which is
reflected as an asset of the Bank on the SNB
Financial Statements that (i) is 90 days or more
delinquent or (ii) has been classified by examiners
(regulatory or internal) as "Substandard," "Doubtful"
or "Loss." The allowance for loan losses reflected on
the SNB Financial Statements has been determined in
accordance with GAAP and in accordance with all rules
and regulations applicable to SNB and the Bank and is
adequate in all material respects. SNB has considered
all potential
-13-
21
losses known to SNB to the best of its knowledge in
establishing the current allowance for loan losses
for the Bank, other than such losses that if incurred
would not have a material adverse effect on SNB or
the Bank.
(k) Reports and Records. SNB and the Bank have filed all
reports and maintained all records required to be
filed or maintained by them under the rules and
regulations of the Board of Governors of the Federal
Reserve System (the "Federal Reserve") and the Office
of the Comptroller of the Currency (the "OCC"),
except for such reports and records the failure to
file or maintain would not reasonably be expected to
have a material adverse effect on SNB and the Bank.
All such documents and reports complied in all
material respects with applicable requirements of law
and rules and regulations in effect at the time such
documents and reports were filed and contained in all
material respects the information required to be
stated therein. None of such documents or reports,
when filed, contained any untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary in order
to make the statements therein, in light of the
circumstances under which they were made, not
misleading.
(l) Taxes. Except as set forth in Section 3.01(l) of the
SNB Disclosure Letter, SNB and the Bank have timely
filed all returns, statements, reports and forms
(including elections, declarations, disclosures,
schedules, estimates and information returns)
(collectively, the "Tax Returns") with respect to all
federal, state, local and foreign income, gross
income, gross receipts, gains, premium, sales, use,
ad valorem, transfer, franchise, profits,
withholding, payroll, employment, excise, severance,
stamp, occupancy, license, lease, environmental,
customs, duties, property, windfall profits and all
other taxes (including any interest, penalties or
additions to tax with respect thereto, individually,
a "Tax" and, collectively, "Taxes") required to be
filed with the appropriate tax authority through the
date of this Agreement. Such Tax Returns are and will
be true, correct and complete in all material
respects. SNB and the Bank have paid and discharged
all Taxes due from them, other than such Taxes that
are adequately reserved as shown on the SNB Financial
Statements or have arisen in the ordinary course of
business since the SNB Balance Sheet Date. Neither
the Internal Revenue Service (the "IRS") nor any
other taxing agency or authority, domestic or
foreign, has asserted, is now asserting or, to the
knowledge of SNB, is threatening to assert against
SNB or the Bank any deficiency or claim for
additional Taxes. There are no unexpired waivers by
SNB or the Bank of any statute of limitations with
respect to Taxes. The accruals and reserves for Taxes
reflected in the SNB Financial Statements are
adequate for the periods covered. SNB and the Bank
have withheld or collected and paid over to the
appropriate
-14-
22
governmental authorities or are properly holding for
such payment all Taxes required by law to be withheld
or collected. There are no liens for Taxes upon the
assets of SNB or the Bank, other than liens for
current Taxes not yet due and payable. Neither SNB
nor the Bank has agreed to make, or is required to
make, any adjustment under Section 481(a) of the
Code. Except as set forth in Section 3.01(l) of the
SNB Disclosure Letter, or as may be caused by any
agreement entered into by Park, neither SNB nor the
Bank is a party to any agreement, contract,
arrangement or plan that has resulted, or could
result, individually or in the aggregate, in the
payment of "excess parachute payments" within the
meaning of Section 280G of the Code. Neither SNB nor
the Bank has ever been a member of an affiliated
group of corporations, within the meaning of Section
1504 of the Code, other than an affiliated group of
which SNB is or was the common parent corporation. No
Tax is required to be withheld pursuant to Section
1445 of the Code as a result of the transactions
contemplated by this Agreement.
(m) Property and Title. Section 3.01(m) of the SNB
Disclosure Schedule lists and describes all real
property, and any leasehold interest in real
property, owned or held by SNB or the Bank and used
in the businesses of SNB or the Bank (collectively,
the "SNB Real Properties"). The SNB Real Properties
constitute all of the real property and interests in
real property used in the businesses of SNB and the
Bank. Copies of all leases of real property to which
SNB or the Bank is a party have been provided to Park
in Section 3.01(m) of the SNB Disclosure Schedule.
Such leasehold interests have not been assigned or
subleased. All SNB Real Properties which are owned by
SNB or the Bank are free and clear of all mortgages,
liens, security interests, defects, encumbrances,
easements, restrictions, reservations, conditions,
covenants, agreements, encroachments, rights of way
and zoning laws, except (i) those set forth in the
SNB Financial Statements or Section 3.01(m) of the
SNB Disclosure Schedule; (ii) easements,
restrictions, reservations, conditions, covenants,
rights of way, zoning laws and other defects and
irregularities in title and encumbrances which do not
materially impair the use thereof for the purposes
for which they are held; and (iii) the lien of
current taxes not yet due and payable. SNB and the
Bank own, and are in rightful possession of, and have
good title to, all of the other assets indicated in
the SNB Financial Statements as being owned by SNB or
the Bank, free and clear of any charge, mortgage,
pledge, security interest, hypothecation,
restriction, claim, option, lien, encumbrance or
interest of any persons whatsoever except those
described in the SNB Financial Statements or Section
3.01(m) of the SNB Disclosure Schedule and except for
those assets disposed of in the ordinary course of
business consistent with past practices. All of the
assets of SNB and the Bank are in operating
-15-
23
condition, except for normal maintenance and routine
repairs, and are adequate to continue to conduct the
businesses of SNB and the Bank as such businesses are
presently being conducted.
(n) Legal Proceedings. Except as set forth in Section
3.01(n) of the SNB Disclosure Schedule, there are no
actions, suits, proceedings, claims or investigations
pending or, to the knowledge of SNB and the Bank,
threatened in any court, before any governmental
agency or instrumentality or in any arbitration
proceeding (i) against or by SNB or the Bank; or (ii)
against or by SNB or the Bank which would prevent the
consummation of this Agreement or of any of the
transactions contemplated hereby or declare the same
to be unlawful or cause the rescission thereof.
(o) Regulatory Matters. Neither SNB nor the Bank nor the
respective properties of SNB or the Bank are parties
to or subject to any order, judgment, decree,
agreement, memorandum of understanding or similar
arrangement with, or a commitment letter or similar
submission to, or extraordinary supervisory letter
from, any court or federal or state governmental
agency or authority, including any such agency or
authority charged with the supervision or regulation
of financial institutions (or their holding
companies) or issuers of securities or engaged in the
insurance of deposit (including, without limitation,
the OCC, the Federal Reserve, the SEC and the Federal
Deposit Insurance Corporation (the "FDIC")) or the
supervision or regulation of SNB or the Bank
(collectively, the "Regulatory Authorities"). Neither
SNB nor the Bank has been advised by any Regulatory
Authority that such Regulatory Authority is
contemplating issuing or requesting (or is
considering the appropriateness of issuing or
requesting) any such order, judgment, decree,
agreement, memorandum of understanding, commitment
letter, supervisory letter or similar submission.
(p) No Conflict. Subject to the required adoption of this
Agreement by the shareholders of SNB, receipt of the
required regulatory approvals, expiration of
applicable regulatory waiting periods, and required
filings under federal and state securities laws, the
execution, delivery and performance of this
Agreement, and the consummation of the transactions
contemplated by this Agreement, by SNB do not and
will not (i) conflict with, or result in a violation
of, or result in the breach of or a default (or which
with notice or lapse of time would result in a
default) under, any provision of: (A) any federal,
state or local law, regulation, ordinance, order,
rule or administrative ruling of any administrative
agency or commission or other federal, state or local
governmental authority or instrumentality (each, a
"Governmental Authority") applicable to SNB or
-16-
24
the Bank or any of their respective properties; (B)
the articles of incorporation or regulations of SNB
or the articles of association or by-laws of the
Bank; (C) any material agreement, indenture or
instrument to which SNB or the Bank is a party or by
which it or its properties or assets may be bound; or
(D) any order, judgment, writ, injunction or decree
of any court, arbitration panel or any Governmental
Authority applicable to SNB or the Bank; (ii) result
in the creation or acceleration of any security
interest, mortgage, option, claim, lien, charge or
encumbrance upon any property of SNB or the Bank; or
(iii) violate the terms or conditions of, or result
in the cancellation, modification, revocation or
suspension of, any material license, approval,
certificate, permit or authorization held by SNB or
the Bank.
(q) Brokers, Finders and Others. Except for the fee paid
or payable to McDonald Investments, Inc., there are
no fees or commissions of any sort whatsoever claimed
by, or payable by SNB or the Bank to, any broker,
finder, intermediary or any other similar person in
connection with effecting this Agreement or the
transactions contemplated hereby.
(r) Employment Agreements. Except as disclosed in Section
3.01(r) of the SNB Disclosure Schedule, neither SNB
nor the Bank is a party to any employment, change in
control, severance or consulting agreement not
terminable at will. Neither SNB nor the Bank is a
party to, bound by or negotiating, any collective
bargaining agreement, nor are any of their respective
employees represented by any labor union or similar
organization. SNB and the Bank are in compliance in
all material respects with all applicable laws
respecting employment and employment practices, terms
and conditions of employment and wages and hours, and
neither SNB nor the Bank has engaged in any unfair
labor practice.
(s) Employee Benefit Plans.
(i) Section 3.01(s)(i) of the SNB Disclosure
Schedule contains a complete and accurate
list of all bonus, incentive, deferred
compensation, pension (including, without
limitation, Pension Plans defined below),
retirement, profit-sharing, thrift, savings,
employee stock ownership, stock bonus, stock
purchase, restricted stock, stock option,
severance, welfare (including, without
limitation, "welfare plans" within the
meaning of Section 3(1) of the Employee
Retirement Income Security Act of 1974, as
amended ("ERISA")), fringe benefit plans,
employment or severance agreements and all
similar practices, policies and arrangements
maintained or contributed to (currently or
within the last six years) by (A) SNB or the
Bank and in which any employee
-17-
25
or former employee (the "Employees"),
consultant or former consultant (the
"Consultants"), officer or former officer
(the "Officers"), or director or former
director (the "Directors") of SNB or the
Bank participates or to which any such
Employees, Consultants, Officers or
Directors either participate or are a party
or (B) any ERISA Affiliate (as defined
below) (collectively, the "Compensation and
Benefit Plans"). Neither SNB nor the Bank
has any commitment to create any additional
Compensation and Benefit Plan or to modify
or change any existing Compensation and
Benefit Plan, except as otherwise
contemplated by Sections 5.08 and 6.02 of
this Agreement.
(ii) Each Compensation and Benefit Plan has been
operated and administered in all material
respects in accordance with its terms and
with applicable law, including, but not
limited to, ERISA, the Code, the Securities
Act (as defined in Section 3.01(u)), the
Exchange Act (as defined in Section
4.01(i)), the Age Discrimination in
Employment Act, or any regulations or rules
promulgated thereunder, and all filings,
disclosures and notices required by ERISA,
the Code, the Securities Act, the Exchange
Act, the Age Discrimination in Employment
Act and any other applicable law have been
timely made. Each Compensation and Benefit
Plan which is an "employee pension benefit
plan" within the meaning of Section 3(2) of
ERISA (a "Pension Plan") and which is
intended to be qualified under Section
401(a) of the Code has received a favorable
determination letter (including a
determination that the related trust under
such Compensation and Benefit Plan is exempt
from tax under Section 501(a) of the Code)
from the IRS and SNB is not aware of any
circumstances likely to result in revocation
of any such favorable determination letter.
There is no material pending or, to the
knowledge of SNB, threatened legal action,
suit or claim relating to the Compensation
and Benefit Plans other than routine claims
for benefits thereunder. Neither SNB nor the
Bank has engaged in a transaction, or
omitted to take any action, with respect to
any Compensation and Benefit Plan that would
reasonably be expected to subject SNB or the
Bank to a tax or penalty imposed by either
Section 4975 of the Code or Section 502 of
ERISA, assuming for purposes of Section 4975
of the Code that the taxable period of any
such transaction expired as of the date
hereof.
(iii) No liability (other than for payment of
premiums to the Pension Benefit Guaranty
Corporation ("PBGC") which have been made or
will be made on a timely basis) under Title
IV of ERISA has been
-18-
26
or is expected to be incurred by SNB or the
Bank with respect to any ongoing, frozen or
terminated "single-employer plan," within
the meaning of Section 4001(a)(15) of ERISA,
currently or formerly maintained by any of
them, or any single-employer plan of any
entity (an "ERISA Affiliate Plan") which is
considered one employer with SNB under
Section 4001(a)(14) of ERISA or Section
414(b), (c) or (m) of the Code (an "ERISA
Affiliate"). None of SNB, the Bank or any
ERISA Affiliate has contributed, or has been
obligated to contribute, to a multiemployer
plan under Subtitle E of Title IV of ERISA
(as defined in ERISA Sections 3(37)(A) and
4001(a)(3)) at any time since September 26,
1980. No notice of a "reportable event",
within the meaning of Section 4043 of ERISA,
for which the 30-day reporting requirement
has not been waived, has been required to be
filed for any Compensation and Benefit Plan
or by any ERISA Affiliate Plan within the
12-month period ending on the date hereof,
and no such notice will be required to be
filed as a result of the transactions
contemplated by this Agreement. The PBGC has
not instituted proceedings to terminate any
Pension Plan or ERISA Affiliate Plan and, to
SNB's knowledge, no condition exists that
presents a material risk that such
proceedings will be instituted. There is no
pending investigation or enforcement action
by the PBGC, the Department of Labor (the
"DOL"), the IRS or any other Governmental
Authority with respect to any Compensation
and Benefit Plan. Under each Pension Plan
and ERISA Affiliate Plan, as of the date of
the most recent actuarial valuation
performed prior to the date of this
Agreement, the actuarially determined
present value of all "benefit liabilities",
within the meaning of Section 4001(a)(16) of
ERISA (as determined on the basis of the
actuarial assumptions contained in such
actuarial valuation of such Pension Plan or
ERISA Affiliate Plan), did not exceed the
then current value of the assets of such
Pension Plan or ERISA Affiliate Plan and
since such date there has been neither an
adverse change in the financial condition of
such Pension Plan or ERISA Affiliate Plan
nor any amendment or other change to such
Pension Plan or ERISA Affiliate Plan that
would increase the amount of benefits
thereunder which reasonably could be
expected to change such result.
(iv) All contributions required to be made under
the terms of any Compensation and Benefit
Plan or ERISA Affiliate Plan or any employee
benefit arrangements under any collective
bargaining agreement to which SNB or the
Bank is a party have been timely made or
have been reflected on the SNB Financial
Statements.
-19-
27
Neither any Pension Plan nor any ERISA
Affiliate Plan has an "accumulated funding
deficiency" (whether or not waived) within
the meaning of Section 412 of the Code or
Section 302 of ERISA and all required
payments to the PBGC with respect to each
Pension Plan or ERISA Affiliate Plan have
been made on or before their due dates. None
of SNB, the Bank or any ERISA Affiliate (x)
has provided, or would reasonably be
expected to be required to provide, security
to any Pension Plan or to any ERISA
Affiliate Plan pursuant to Section
401(a)(29) of the Code, and (y) has taken
any action, or omitted to take any action,
that has resulted, or would reasonably be
expected to result, in the imposition of a
lien under Section 412(n) of the Code or
pursuant to ERISA.
(v) Except as disclosed in Section 3.01(s)(v) of
the SNB Disclosure Schedule, neither SNB nor
the Bank has any obligations to provide
retiree health and life insurance or other
retiree death benefits under any
Compensation and Benefit Plan, other than
benefits mandated by Section 4980B of the
Code. Except as disclosed in Section
3.01(s)(v) of the SNB Disclosure Schedule,
there has been no communication to Employees
by SNB or the Bank that would reasonably be
expected to promise or guarantee such
Employees retiree health or life insurance
or other retiree death benefits on a
permanent basis.
(vi) SNB and the Bank do not maintain any
Compensation and Benefit Plans covering
foreign Employees.
(vii) With respect to each Compensation and
Benefit Plan, if applicable, SNB has
provided or made available to Park, true and
complete copies of existing: (A)
Compensation and Benefit Plan documents and
amendments thereto; (B) trust instruments
and insurance contracts; (C) two most recent
Forms 5500 filed with the IRS; (D) most
recent actuarial report and financial
statement; (E) most recent summary plan
description; (F) forms filed with the PBGC
within the past year (other than for premium
payments); (G) most recent determination
letter issued by the IRS; (H) any Form 5310,
Form 5310A, Form 5300 or Form 5330 filed
within the past year with the IRS; and (I)
most recent nondiscrimination tests
performed under ERISA and the Code
(including but not limited to Code Section
401(k) and 401(m) tests).
(viii) Except as disclosed on Section 3.01(s)(viii)
of the SNB Disclosure Schedule, the
consummation of the transactions
contemplated by this Agreement would not,
directly or indirectly (including,
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28
without limitation, as a result of any
termination of employment prior to or
following the Effective Time), reasonably be
expected to (A) entitle any Employee,
Consultant or Director to any payment
(including severance pay or similar
compensation) or any increase in
compensation, (B) result in the vesting or
acceleration of any benefits under any
Compensation and Benefit Plan or (C) result
in any material increase in benefits payable
under any Compensation and Benefit Plan.
(ix) Except as disclosed on Section 3.01(s)(ix)
of the SNB Disclosure Schedule, neither SNB
nor the Bank maintains any compensation
plans, programs or arrangements the payments
under which would not reasonably be expected
to be deductible as a result of the
limitations under Section 162(m) of the Code
and the regulations issued thereunder.
(x) Except as disclosed on Section 3.01(s)(x) of
the SNB Disclosure Schedule, as a result,
directly or indirectly, of the transactions
contemplated by this Agreement (including,
without limitation, as a result of any
termination of employment prior to or
following the Effective Time), none of Park,
SNB or the Surviving Corporation, or any of
their respective Subsidiaries will be
obligated to make a payment that would be
characterized as an "excess parachute
payment" to an individual who is a
"disqualified individual" (as such terms are
defined in Section 280G of the Code) of SNB
on a consolidated basis, without regard to
whether such payment is reasonable
compensation for personal services performed
or to be performed in the future.
(t) Compliance with Laws. Each of SNB and the Bank:
(i) has been in compliance with all applicable
federal, state, local and foreign statutes,
laws, regulations, ordinances, rules,
judgments, orders or decrees applicable
thereto or to the employees conducting such
business, including, without limitation, the
Equal Credit Opportunity Act, the Fair
Housing Act, the Community Reinvestment Act,
the Home Mortgage Disclosure Act and all
other applicable fair lending laws and other
laws relating to discriminatory business
practices, except for failures to be in
compliance which, individually or in the
aggregate, have not had or would not
reasonably be expected to have a material
adverse effect on SNB or the Bank;
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(ii) has all permits, licenses, authorizations,
orders and approvals of, and has made all
filings, applications and registrations
with, all Governmental Authorities that are
required in order to permit it to own or
lease its properties and to conduct its
business as presently conducted, except
where the failure to obtain any of the
foregoing or to make any such filing,
application or registration has not had or
would not reasonably be expected to have a
material adverse effect on SNB or the Bank;
all such permits, licenses, certificates of
authority, orders and approvals are in full
force and effect and to SNB's knowledge, no
suspension or cancellation of any of them is
threatened; and
(iii) has received no notification or
communication from any Governmental
Authority (A) asserting that SNB or the Bank
is not in compliance with any of the
statutes, regulations or ordinances which
such Governmental Authority enforces or (B)
threatening to revoke any license,
franchise, permit or governmental
authorization (nor, to SNB's knowledge, do
any reasonable grounds for any of the
foregoing exist), which has not been
resolved to the satisfaction of the
Governmental Authority which sent such
notification or communication.
(u) SNB Information. None of the information relating to
SNB and the Bank to be contained in (i) the
Registration Statement (as that term is defined in
Section 7.07 below) will, at the time the
Registration Statement is filed with the SEC and at
the time it becomes effective under the Securities
Act of 1933, as amended (the "Securities Act"),
contain any untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary in order to make the statements
therein, in light of the circumstances under which
they were made, not misleading, and (ii) the SNB
Proxy Statement (as that term is defined in Section
5.03(b) below), as of the date such SNB Proxy
Statement is mailed to shareholders of SNB and up to
and including the date of the meeting of shareholders
to which such SNB Proxy Statement relates, will
contain any untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary in order to make the statements
therein, in light of the circumstances under which
they were made, not misleading, provided that, in
each case, information as of a later date shall be
deemed to modify information as of an earlier date.
All information about SNB and the Bank included in
the Registration Statement and the SNB Proxy
Statement will be deemed to have been supplied by
SNB.
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(v) Insurance.
(i) Section 3.01(v) of the SNB Disclosure
Schedule sets forth all of the insurance
policies, binders or bonds maintained by SNB
or the Bank and a description of all claims
filed by SNB or the Bank against the
insurers of SNB and the Bank since December
31, 1997. SNB and the Bank are insured with
reputable insurers against such risks and in
such amounts as the management of SNB
reasonably has determined to be prudent in
accordance with industry practices. All such
insurance policies are in full force and
effect; SNB and the Bank are not in material
default thereunder; and all claims
thereunder have been filed in due and timely
fashion.
(ii) The deposits of the Bank are insured by the
FDIC in accordance with the Federal Deposit
Insurance Act, and the Bank has paid all
assessments and filed all reports required
by the Federal Deposit Insurance Act.
(w) Governmental Proceedings. No consent, approval,
authorization of, or registration, declaration or
filing with, any court, Governmental Authority or any
other third party is required to be made or obtained
by SNB or the Bank in connection with the execution,
delivery or performance by SNB of this Agreement or
the consummation by SNB of the transactions
contemplated hereby, except for (A) filings of
applications and notices, as applicable, with and the
approval of certain federal and state banking
authorities, (B) filings with the SEC and state
securities authorities and (C) the filing of the
appropriate certificate of merger with the Secretary
of State pursuant to the OGCL. As of the date hereof,
SNB is not aware of any reason why the approvals set
forth in Section 7.08 will not be received without
the imposition of a condition, restriction or
requirement of the type described in Section 7.08.
(x) Contracts. Section 3.01(x) of the SNB Disclosure
Schedule sets forth a list, identifying by dates,
subject matter and parties, all contracts, agreements
and instruments to which SNB or the Bank is a party
or by which either of them is bound, and which
involve the payment by or to SNB or the Bank of more
than $50,000 in connection with the purchase of
property or goods or the performance of services and
which are not in the ordinary course of their
respective businesses. True, complete and correct
copies of all such contracts, agreements and
instruments have been delivered to Park. Neither SNB
nor the Bank, nor any other party to such contract,
is in default under any such contract, agreement,
commitment, arrangement or other instrument to which
it is a party, by which its
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respective assets, business or operations may be
bound or affected in any way, or under which it or
its respective assets, business or operations receive
benefits, and there has not occurred any event that,
with the lapse of time or the giving of notice or
both, would constitute such a default.
(y) Environmental Matters. Except as otherwise disclosed
in Section 3.01(y) of the SNB Disclosure Schedule:
(i) SNB and the Bank are and have been at all times
in compliance in all material respects with all
applicable Environmental Laws (as that term is
defined in this Section 3.01(y)), and, to the
knowledge of SNB, SNB and the Bank have not engaged
in any activity in violation of any applicable
Environmental Law; (ii)(A) no investigations,
inquiries, orders, hearings, actions or other
proceedings by or before any court or Governmental
Authority are pending or, to the knowledge of SNB,
threatened in connection with any of SNB's and Bank's
activities and any SNB Real Properties or
improvements thereon, and (B) to the knowledge of
SNB, no investigations, inquiries, orders, hearings,
actions or other proceedings by or before any court
or Governmental Authority are pending or threatened
in connection with any real properties in respect of
which the Bank holds a mortgage or mortgages
(hereinafter referred to as the "Bank Real Estate
Collateral"); (iii) no claims at any time have been
made or threatened by any third party against SNB or
the Bank, or with respect to the SNB Real Properties
or improvements thereon, or, to the knowledge of SNB,
the Bank Real Estate Collateral, relating to damage,
contribution, cost recovery, compensation, loss or
injury resulting from any Hazardous Substance (as
that term is defined in this Section 3.01(y)) which
have not been resolved to the satisfaction of the
involved parties and which have had or are reasonably
expected to have a material adverse effect on SNB or
the Bank; (iv) no Hazardous Substances have been
integrated into the SNB Real Properties or
improvements thereon, or, to the knowledge of SNB,
the Bank Real Estate Collateral or any component
thereof in such manner or quantity as may reasonably
be expected to or in fact would pose a threat to
human health or the value of the real property and
improvements; (v) to SNB's knowledge, no portion of
the SNB Real Properties or improvements thereon, or
the Bank Real Estate Collateral is located within 500
feet of (A) a release of Hazardous Substance which
has been reported or is required to be reported under
any Environmental Law or (B) the location of any site
used, in the past or presently, for the disposal of
any Hazardous Substances; and (vi) neither SNB nor
the Bank has knowledge, based upon commercially
reasonable inquiry, that (A) any of the SNB Real
Properties or improvements thereon, or the Bank Real
Estate Collateral has been used for the storage or
disposal of Hazardous Substances or has been
contaminated by Hazardous Substances, (B) any of its
business operations have contaminated lands, waters
or other property of others with
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Hazardous Substances, except routine,
office-generated solid waste, or (C) any of the SNB
Real Properties or improvements thereon, or the Bank
Real Estate Collateral have in the past or presently
contain underground storage tanks, friable asbestos
materials or PCB-containing equipment.
For purposes of this Agreement, (i) "Environmental
Law" means the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C.
section 9601 ET SEQ., the Resource Conservation and
Recovery Act, 42 U.S.C. section 6901 ET SEQ., the
Hazardous Materials Transportation Act, 49 U.S.C.
section 1802 ET SEQ., the Toxic Substances Control
Act, 15 U.S.C. section 2601 ET SEQ., the Federal
Water Pollution Control Act, 33 U.S.C. section 1251
ET SEQ., the Clean Water Act, 33 U.S.C. section 1321
ET SEQ., the Clean Air Act, 42 U.S.C. section 7401
ET SEQ., regulations promulgated thereunder, and any
other federal, state, county, municipal, local or
other statute, law, ordinance or regulation which
may relate to or deal with human health or the
environment, as of the date of this Agreement, and
(ii) "Hazardous Substances" means, at any time: (a)
any "hazardous substance" as defined in section
101(14) of CERCLA or regulations promulgated
thereunder; (b) any "solid waste," "hazardous
waste," or "infectious waste," as such terms are
defined in any other Environmental Law as of the
date of this Agreement; and (c) friable asbestos,
urea-formaldehyde, polychlorinated biphenyls
("PCBs"), nuclear fuel or material, chemical waste,
radioactive material, explosives, known carcinogens,
petroleum products and by-products, and other
dangerous, toxic or hazardous pollutants,
contaminants, chemical, materials or substances
listed or identified in, or regulated by, any
Environmental Law.
(z) Pooling. Neither SNB nor the Bank has taken,
permitted or agreed to take any action that would
prevent Park from accounting for the business
combination to be effected by the Merger as a
"pooling of interests."
(aa) Takeover Laws. SNB has taken all action required to
be taken by it in order to exempt this Agreement and
the transactions contemplated hereby from, and this
Agreement and the transactions contemplated hereby
are exempt from, the requirements of any
"moratorium", "control share", "fair price",
"affiliate transaction", "business combination" or
other anti-takeover laws or regulations of any state
(collectively, "Takeover Laws") applicable to it,
including, without limitation, those of the State of
Ohio.
(bb) Risk Management Instruments. All material interest
rate swaps, caps, floors, option agreements, futures
and forward contracts and other similar risk
management arrangements, whether entered into for
SNB's own account, or for the account of one or more
of the Bank or its customers (all of which are listed
on the SNB Disclosure Schedule), or entered into (i)
in
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accordance with prudent business practices and all
applicable laws, rules, regulations and regulatory
policies and (ii) with counter-parties believed to be
financially responsible at the time; and each of them
constitutes the valid and legally binding obligation
of SNB or the Bank, enforceable in accordance with
its terms, and is in full force and effect. Neither
SNB nor the Bank, nor to SNB's knowledge any other
party thereto, is in breach of any of its obligations
under any such agreement or arrangement.
(cc) Books and Records. The books and records of SNB and
the Bank have been fully, properly and accurately
maintained and have been maintained in accordance
with sound business practices. Such books and records
fairly reflect the substance of events and
transactions included therein.
(dd) Year 2000. Neither SNB nor the Bank has received, or
has reason to believe that it will receive, a written
rating of less than "satisfactory" on any OCC or
other Regulatory Authority Year 2000 Report of
Examination. SNB has disclosed to Park a complete and
accurate copy of its Year 2000 plan, including an
estimate of the anticipated associated costs, for
addressing the issues set forth in the statements of
the FFIEC dated May 5, 1997, entitled "Year 2000
Project Management Awareness," and December 17, 1997,
entitled "Safety and Soundness Guidelines Concerning
the Year 2000 Business Risk," as such issues affect
SNB and the Bank and such plan is in material
compliance with the schedules set forth in the FFIEC
statements.
(ee) Repurchase Agreements. With respect to any agreement
pursuant to which SNB or the Bank has purchased
securities subject to an agreement to repurchase, SNB
or the Bank, as the case may be, has a valid,
perfected first lien or security interest in or
evidence of ownership in book entry form of the
government securities or other collateral securing
the repurchase agreement, and the value of such
collateral equals or exceeds the amount of the debt
secured thereby.
(ff) Disclosure. No representation or warranty by SNB
contained in this Agreement and no statement
contained in any certificate or other document
(including the SNB Disclosure Schedule) furnished by
SNB to Park pursuant to this Agreement contains any
untrue statement of a material fact or omits to state
a material fact necessary to make the statements
contained herein and therein not misleading, in the
light of the circumstances under which they were
made.
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ARTICLE FOUR
REPRESENTATIONS AND WARRANTIES OF PARK
4.01. REPRESENTATIONS AND WARRANTIES OF PARK
Park hereby warrants and represents to SNB that:
(a) Corporate Status. Park is an Ohio corporation and a
bank holding company registered under the BHC Act; is
duly organized, validly existing and in good standing
under the laws of the State of Ohio; and has the full
corporate power and authority to own its property, to
carry on its business as presently conducted and to
enter into and perform its obligations under this
Agreement and consummate the transactions
contemplated by this Agreement.
(b) Corporate Proceedings. All corporate proceedings of
Park necessary to authorize the execution, delivery
and performance of this Agreement, and the
consummation of the transactions contemplated by this
Agreement, by Park have been duly and validly taken.
This Agreement has been validly executed and
delivered by duly authorized officers of Park.
(c) Capitalization of Park.
(i) As of the date of this Agreement, the
authorized capital stock of Park consists
only of 20,000,000 common shares, without
par value, of which 9,739,570 Park Shares
are issued and outstanding and 291,565 Park
Shares are held in treasury by Park. The
outstanding Park Shares have been duly
authorized and are validly issued, fully
paid and non-assessable, and were not issued
in violation of the preemptive rights of any
person. As of the date of this Agreement,
except pursuant to this Agreement and as
disclosed in Section 4.01(c) of the Park
Disclosure Schedule, Park has no commitment
or obligation to issue, deliver or sell any
Park Shares.
(ii) The Park Shares to be issued in exchange for
SNB Shares in the Merger, when issued in
accordance with the terms of this Agreement,
will be duly authorized, validly issued,
fully paid and non-assessable and subject to
no preemptive rights.
(d) Authorized and Effective Agreement. This Agreement
constitutes the legal, valid and binding obligation
of Park, enforceable against Park in accordance with
its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar laws relating
to or affecting the enforcement
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of creditors' right generally, by general equitable
principles (regardless of whether enforceability is
considered in a proceeding in equity or at law) and
by an implied covenant of good faith and fair
dealing. Park has the absolute and unrestricted
right, power, authority and capacity to execute and
deliver this Agreement and, subject to the
satisfaction of the requirements referred to in
Section 4.01(k) and the expiration of applicable
regulatory waiting periods, and required filings
under federal and state securities laws, to perform
its obligations under this Agreement.
(e) No Conflict. Subject to the satisfaction of the
requirements referred to in Section 4.01(k) and
expiration of applicable regulatory waiting periods,
and required filings under federal and state
securities laws, the execution, delivery and
performance of this Agreement, and the consummation
of the transactions contemplated by this Agreement,
by Park do not and will not (i) conflict with, or
result in a violation of, or result in the breach of
or a default (or which with notice or lapse of time
would result in a default) under any provision of:
(A) any federal, state or local law, regulation,
ordinance, order, rule or administrative ruling of
any Governmental Authority applicable to Park or any
of its properties; (B) the Articles of Incorporation
or Regulations of Park; (C) any material agreement,
indenture or instrument to which Park is a party or
by which it or its properties or assets may be bound;
or (D) any order, judgment, writ, injunction or
decree of any court, arbitration panel or any
Governmental Authority applicable to Park; (ii)
result in the creation or acceleration of any
security interest, mortgage, option, claim, lien,
charge or encumbrance upon any property of Park; or
(iii) violate the terms or conditions of, or result
in the cancellation, modification, revocation or
suspension of, any material license, approval,
certificate, permit or authorization held by Park.
(f) Financial Statements of Park. Park has furnished to
SNB consolidated financial statements of Park
consisting of (i) consolidated balance sheets as of
December 31, 1998 and 1997 and the related
consolidated statements of income, changes in
shareholders' equity and cash flows for the three
years ended December 31, 1998, including accompanying
notes and the report thereon of Ernst & Young LLP and
(ii) unaudited consolidated balance sheets as of
September 30, 1999 (the "Park Balance Sheet Date")
and December 31, 1998, the related unaudited
consolidated statements of income for the three and
nine months ended September 30, 1999 and 1998, of
changes in shareholders' equity for the nine months
ended September 30, 1999 and 1998 and of cash flows
for the nine months ended September 30, 1999 and 1998
(collectively, all of such consolidated financial
statements are referred to as the "Park Financial
Statements"). The Park Financial Statements were
prepared in conformity with GAAP
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applied on a consistent basis and present fairly, in
all material respects, the consolidated financial
condition of Park at the dates, and the consolidated
results of operations and cash flows for the periods,
stated therein; subject, in the case of the interim
financial statements, to normal year-end audit
adjustments which are not expected to be,
individually or in the aggregate, materially adverse
to Park and the absence of full footnotes.
(g) Absence of Changes. Since the Park Balance Sheet
Date: (i) the businesses of Park and its subsidiaries
have been conducted only in the ordinary course
consistent with past practice; (ii) there has been no
material adverse change in the assets, liabilities,
business or operations of Park and its subsidiaries
taken as a whole; (iii) there has been no damage,
destruction, loss or event (whether or not insured
against) which in the aggregate has had or might
reasonably be expected to have a material adverse
effect on the business or operations of Park and its
subsidiaries taken as a whole; and (iv) Park has
announced its proposed acquisition of U. B.
Bancshares, Inc., an Ohio corporation, pursuant to a
merger.
(h) Takeover Laws. Park has taken all action required to
be taken by it in order to exempt this Agreement and
the transactions contemplated hereby from, and this
Agreement and the transactions contemplated hereby
are exempt from, the requirements of any Takeover
Laws applicable to Park.
(i) Reports and Records. The Park Shares are registered
with the SEC pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"). Park has filed all reports and proxy
materials required to be filed by it with the SEC
pursuant to the Exchange Act, except for any reports
or proxy materials the failure to file which would
not have a material adverse effect upon Park and its
subsidiaries taken as a whole. All such filings, at
the time of filing, complied in all material respects
as to form and included all exhibits required to be
filed under the applicable rules of the SEC. None of
such documents, when filed, contained any untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary in order to make the statements therein, in
light of the circumstances under which they were
made, not misleading.
(j) Brokers, Finders and Others. There are no fees or
commissions of any sort whatsoever claimed by, or
payable by Park to, any broker, finder, intermediary
or any other similar person in connection with
effecting this Agreement or the transactions
contemplated hereby.
(k) Governmental Proceedings. No consent, approval,
authorization of, or registration, declaration or
filing with, any court, Governmental Authority
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or any other third party is required to be made or
obtained by Park in connection with the execution,
delivery or performance by Park of this Agreement or
the consummation by Park of the transactions
contemplated hereby, except for (A) filings of
applications or notices, as applicable, with and the
approval of certain federal banking authorities, (B)
filings with the SEC and state securities
authorities, (C) the filing of the appropriate
certificate of merger with the Secretary of State
pursuant to the OGCL and (D) receipt of the approvals
set forth in Section 7.08. As of the date hereof,
Park is not aware of any reason why the approvals set
forth in Section 7.08 will not be received without
the imposition of a condition, restriction or
requirement of the type described in Section 7.08.
(l) Pooling. Neither Park nor any of its Subsidiaries has
taken or permitted any action which would prevent the
Merger from being accounted for as a pooling of
interests.
(m) Park Information. None of the information relating to
Park to be contained in the Registration Statement
will, at the time the Registration Statement is filed
with the SEC and at the time it becomes effective
under the Securities Act, contain any untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary in order to make the statements therein, in
light of the circumstances under which they were
made, not misleading, provided that information as of
a later date shall be deemed to modify information as
of an earlier date.
(n) Year 2000. Neither Park nor any of its Subsidiaries
has received, or has reason to believe that it will
receive, a written rating of less than "satisfactory"
on any Year 2000 Report of Examination of any
Regulatory Authority. Park has disclosed to SNB a
complete and accurate copy of its Year 2000 plan,
including an estimate of the anticipated associated
costs, for addressing the issues set forth in the
statements of the FFIEC dated May 5, 1997, entitled
"Year 2000 Project Management Awareness," and
December 17, 1997, entitled "Safety and Soundness
Guidelines Concerning the Year 2000 Business Risk,"
as such issues affect Park and its Subsidiaries, and
such plan is in material compliance with the schedule
set forth in the FFIEC statements.
(o) Deposit Insurance. The deposits of Park's bank
subsidiaries are insured by the FDIC in accordance
with the Federal Deposit Insurance Act and said banks
have paid all assessments and filed all reports
required by the Federal Deposit Insurance Act.
(p) Disclosure. No representation or warranty by Park
contained in this Agreement, and no statement
contained in any certificate or other
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document (including the Park Disclosure Schedule)
furnished by Park to SNB pursuant to this Agreement
contains any untrue statement of a material fact or
omits to state a material fact necessary to make the
statements contained herein and therein not
misleading, in the light of the circumstances under
which they were made.
ARTICLE FIVE
FURTHER COVENANTS OF SNB
5.01. OPERATION OF BUSINESS
SNB covenants with Park that throughout the period from the
date of this Agreement to and including the Closing:
(a) Conduct of Business. SNB's business and the business
of the Bank will be conducted only in the ordinary
and usual course consistent with past practice.
Without the written consent of Park, SNB shall not
(i) take any action which would be inconsistent with
any representation or warranty of SNB set forth
herein or which would cause a breach of any such
representation or warranty if made at or immediately
following such action; or (ii) engage in any lending
activities other than in the ordinary course of
business consistent with past practice. SNB shall
send to Park via facsimile transmission a copy of all
loan presentations made to the Board of Directors of
SNB at the same time as such presentations are
transmitted to such Board and all other proposals for
loans in excess of $500,000. SNB shall consult with
Park prior to (x) hiring any full-time officer, other
than replacement employees for positions then
existing and (y) purchasing any investment
securities.
(b) Changes in Business and Capital Structure. Except
with the consent of Park or as provided for by this
Agreement, SNB will not, and will cause the Bank not
to:
(i) sell, transfer, mortgage, pledge or subject
to any lien or otherwise encumber any of the
assets of SNB or the Bank, tangible or
intangible, except in the ordinary course of
business for full and fair consideration
actually received;
(ii) make any capital expenditure or capital
additions or betterments (other than
expenditures of up to $157,000 in respect of
computer equipment which was previously
approved by the Bank as a planned capital
expenditure for 2000) which, in the
aggregate, exceed $40,000;
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(iii) become bound by, enter into, or perform any
material contract, commitment or transaction
which is other than in the ordinary course
of its business or which would cause or
result in its being unable to perform its
obligations under this Agreement;
(iv) declare, pay or set aside for payment any
dividends or make any distributions on its
capital shares issued and outstanding other
than (A) semi-annual cash dividends on SNB
Shares in an amount not to exceed $4.00 per
share, with record and payment dates as
indicated in Section 7.09 of this Agreement,
and (B) those payable by the Bank to SNB, in
each case which are consistent with the past
practices of SNB and the Bank; except that
SNB may declare in 2000 and pay in 2000, in
lieu of semi-annual dividends, quarterly
dividends provided the amount per share per
quarter is less than $3.49;
(v) purchase, redeem, retire or otherwise
acquire any of its capital shares;
(vi) issue or grant any option or right to
acquire any of its capital shares or effect,
directly or indirectly, any stock split,
recapitalization, combination, exchange of
shares, readjustment or other
reclassification;
(vii) amend its articles of incorporation,
constitution, regulations or by-laws;
(viii) merge or consolidate with any other person
or otherwise reorganize except for the
Merger;
(ix) acquire (other than by way of foreclosures
or acquisitions of control in a bona fide
fiduciary capacity or in satisfaction of
debts previously contracted in good faith,
in each case in the ordinary and usual
course of business consistent with past
practice) all or any portion of, the assets,
business, deposits or properties of any
other entity;
(x) enter into, establish, adopt or amend any
pension, retirement, stock option, stock
purchase, savings, profit sharing, deferred
compensation, consulting, bonus, group
insurance or other employee benefit,
incentive or welfare contract, plan or
arrangement, or any trust agreement (or
similar arrangement) related thereto, in
respect of any Director, Officer or Employee
of SNB or the Bank, or take any action to
accelerate the vesting or exercisability of
stock options, restricted stock or other
compensation or benefits payable there-
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under; provided, however, that SNB may (A)
take such actions in order to satisfy either
applicable law or contractual obligations
existing as of the date hereof and disclosed
in the SNB Disclosure Schedule or regular
annual renewals of insurance contracts; and
(B) terminate its Defined Contribution
Retirement Plan at any time before the
Effective Time, with benefit distributions
deferred until the IRS issues a favorable
determination with respect to the
terminating plan's tax-qualified status upon
termination and with SNB and Park to
cooperate in good faith to apply for such
approval and to agree upon associated plan
termination amendments that shall, among
other things, provide for the application of
all assets of a terminating plan for its
participants, and allow plan participants
not only to receive lump-sum distributions
of their benefits but also to transfer those
benefits to the Park National Corporation
Employee's Voluntary Salary Deferral Plan
and Trust maintained for employees of Park
and its Subsidiaries;
(xi) pay any general wage or salary increase,
other than normal pay increases consistent
with past practices, or enter into or amend
or renew any employment, consulting,
severance or similar agreements or
arrangements with any Officer, Director or
Employee, except, in each case, for changes
which are required by applicable law or to
satisfy contractual obligations existing as
of the date hereof and disclosed in the SNB
Disclosure Schedule;
(xii) enter into or terminate any contract
requiring the payment or receipt of $15,000
or more in any 12-month period or amend or
modify in any material respect any of its
existing material contracts;
(xiii) incur any indebtedness for money borrowed or
incur any material obligation or liability
other than in the ordinary course of
business;
(xiv) take any action that would, or is reasonably
likely to, prevent or impede the Merger from
qualifying (A) for "pooling-of-interest"
accounting treatment or (B) as a
reorganization within the meaning of Section
368(a) of the Code;
(xv) implement or adopt any change in its
accounting principles, practices or methods,
other than as may be required by GAAP;
(xvi) waive or cancel any right of material value
or material debts, except in the ordinary
course of business consistent with past
practices;
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(xvii) take any action that would result in (A) any
of its representations or warranties
contained in this Agreement being or
becoming untrue in any material respect at
any time at or prior to the Effective Time,
(B) any of the conditions to the Merger set
forth in Article Eight not being satisfied
or (C) a violation of any provision of this
Agreement except, in each case, as may be
required by applicable law or regulation;
(xviii) cause any material adverse change in the
amount or general composition of deposit
liabilities;
(xix) make any material investment (except in the
ordinary course of business); or
(xx) enter into any agreement to do any of the
foregoing.
(c) Maintenance of Property. SNB and the Bank will use
their commercially reasonable efforts to maintain and
keep their respective property and facilities in
their present condition and working order, ordinary
wear and tear excepted.
(d) Performance of Obligations. SNB and the Bank will
perform all of their obligations under all agreements
relating to or affecting their properties, rights and
business, except where nonperformance would not have
a material adverse effect on SNB or the Bank.
(e) Maintenance of Business Organization. SNB will, and
will cause the Bank to, use their commercially
reasonable efforts to maintain and preserve their
respective business organizations intact; to retain
present key employees; and to maintain the respective
relationships of customers, suppliers and others
having business relationships with them. SNB will
not, and will cause the Bank not to, take any action
or omit to take any action which would terminate or
enable any Employee of SNB or the Bank to terminate
his employment or employment agreement without cause
and continue thereafter to receive compensation.
(f) Insurance. SNB and the Bank will maintain insurance
coverage with reputable insurers, which in respect of
amounts, premiums, types and risks insured, were
maintained by them at the Balance Sheet Date, and
upon the renewal or termination of such insurance,
SNB and the Bank will use commercially reasonable
best efforts to renew or replace such insurance
coverage with reputable insurers, which in respect of
amounts, premiums, types and risks insured or
maintained by them at the Balance Sheet Date.
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(g) Access to Information. SNB will, and will cause the
Bank to, take all action necessary to (i) afford the
officers and designated representatives of Park full
access during normal business hours upon reasonable
notice to all of SNB's and the Bank's properties
(including for purposes of inspection and
investigation for soil and groundwater tests), books,
records, tax returns and reports, financial
statements, contracts and commitments, and any work
papers relating to any of the foregoing; (ii) furnish
to Park all such documents, copies of documents, and
information (A) concerning compliance and/or
noncompliance with Environmental Laws and with
respect to the past, present or suspected future
presence of Hazardous Substances on the SNB Real
Properties, and Bank Real Estate Collateral,
including but not limited to environmental audit and
Phase I reports, and (B) concerning SNB's and the
Bank's affairs as Park may reasonably request; (iii)
afford full access to Park to SNB's and the Bank's
Officers, Directors, Employees and agents in order
that Park may have full opportunity to make such
investigation as it shall desire to make of the
business and affairs of SNB and the Bank; and (iv)
authorize Park's representatives to inquire of
government agencies, and inspect the files of those
agencies, with respect to the environment conditions
on and about the SNB Real Properties and Bank Real
Estate Collateral. During the period from the date of
this Agreement to the Effective Time, SNB shall
promptly furnish Park with copies of all monthly and
other interim financial statements produced in the
ordinary course of business as the same shall become
available.
(h) Payment of Taxes. SNB shall, and shall cause the Bank
to, timely file all Tax Returns, required to be filed
on or before the Closing Date, and pay any Tax shown
on such Tax Returns to be due.
(i) Risk Management. Except as required by applicable law
or regulation, neither SNB nor Bank shall (i)
implement or adopt any material change in its
interest rate risk management and other risk
management policies, procedures or practices; (ii)
fail to follow its existing policies or practices
with respect to managing its exposure to interest
rate and other risks; or (iii) fail to use
commercially reasonable means to avoid any material
increase in its aggregate exposure to interest rate
risk.
5.02. NOTIFICATION
Between the date of this Agreement and the Closing Date, SNB
will promptly notify Park in writing if SNB becomes aware of any fact or
condition that (a) causes or constitutes a breach of any of its representations
and warranties or (b) would (except as expressly contemplated by this Agreement)
cause or constitute a breach of any such representation or warranty had such
representation or warranty been made as of the time of occurrence or
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discovery of such fact or condition. Should any such fact or condition require
any change in the SNB Disclosure Schedule, SNB will promptly deliver to Park a
supplement to the SNB Disclosure Schedule specifying such change ("Updated SNB
Disclosure Schedule"). During the same period, SNB will promptly notify Park of
(i) the occurrence of any breach of any of its covenants contained in this
Agreement, (ii) the occurrence of any event that may make the satisfaction of
the conditions in this Agreement impossible or unlikely or (iii) the occurrence
of any event that is reasonably likely, individually or taken with all other
facts, events or circumstances known to it, to result in a material adverse
effect with respect to it. In addition, if at any time prior to the Effective
Time, any event or circumstances relating to SNB or any of its Officers or
Directors should be discovered which should be set forth in an amendment to the
Registration Statement or a supplement to the SNB Proxy Statement, SNB shall
promptly inform Park.
5.03. SHAREHOLDER APPROVAL
SNB covenants that:
(a) The Board of Directors of SNB will recommend the
adoption of this Agreement and the approval of the
transactions contemplated hereby to the shareholders
of SNB, subject to that Board's fiduciary obligations
under Ohio law, as determined in good faith after
consultation with and based upon advise of
independent legal counsel.
(b) SNB will call a meeting of its shareholders (the "SNB
Meeting") to be held as soon as reasonably
practicable after the Registration Statement is
declared effective by the SEC, for the purpose of
adopting this Agreement and approving the
transactions contemplated hereby and will, subject to
the provisions of Sections 5.03(a) and 5.04(a), use
its best efforts to effect such adoption and
approval. SNB will prepare appropriate proxy
solicitation materials in respect of the SNB Meeting,
which materials will include a proxy statement of SNB
(the "SNB Proxy Statement") and which will be a part
of the Registration Statement to be submitted by Park
to the SEC pursuant to Section 7.07 of this
Agreement.
5.04. ACQUISITION PROPOSALS
From and after the date hereof, SNB will not, directly or
indirectly, through any of its Officers, Directors, Employees, agents or
advisors, (i) solicit or initiate or knowingly encourage, including by means of
furnishing information, any proposals, offers or inquiries from any person
relating to any acquisition or purchase of 20% or more of the outstanding shares
of any class of voting securities of, or 20% or more of the assets or deposits
of, SNB or the Bank, or any merger, tender or exchange offer, consolidation or
business combination involving, SNB or the Bank (an "Acquisition Proposal") or
(ii) unless the directors of SNB determine in good faith
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that such action is required for them to fulfill their fiduciary duties and
obligations to the SNB shareholders under Ohio law as advised by counsel to SNB
and SNB gives prior notice to Park of such action (in which event SNB may
furnish information), engage in negotiations with or disclose any nonpublic
information relating to SNB or the Bank or afford access to the SNB Real
Properties, or the books or records of SNB or the Bank to any person that may be
considering or has made an Acquisition Proposal. SNB shall promptly (within 24
hours) notify Park, orally and in writing, if any such proposal, offer, inquiry
or contact is made and shall, in any such notice, indicate the identity and
terms and conditions of any proposal or offer, or any such inquiry or contact.
SNB shall immediately cease and cause to be terminated any activities,
discussions or negotiations conducted prior to the date of this Agreement with
any parties other than Park with respect to any Acquisition Proposal and shall
use its reasonable best efforts to enforce any confidentiality or similar
agreement relating to an Acquisition Proposal.
5.05. DELIVERY OF INFORMATION
SNB will promptly furnish to Park all information requested by
Park regarding SNB's assets, properties, business, affairs, operations,
condition (financial or otherwise), prospects and corporate organization as
shall be required by the rules and regulations under the Securities Act or by
the SEC for inclusion in the Registration Statement described in Section 7.07
and shall otherwise reasonably assist Park in the preparation and filing of such
Registration Statement.
5.06. AFFILIATES COMPLIANCE WITH THE SECURITIES ACT
(a) In the SNB Disclosure Schedule and no later than the
15th day prior to the mailing of the SNB Proxy
Statement, SNB shall deliver to Park a schedule of
all persons whom SNB reasonably believes are, or are
likely to be, as of the date of the SNB Meeting,
deemed to be "affiliates" of SNB as that term is used
in Rule 145 under the Securities Act and/or
Accounting Series Releases 130 and 135, as amended,
of the SEC (the "Rule 145 Affiliates"). Thereafter
and until the Effective Time, SNB shall identify to
Park each additional person whom it reasonably
believes to have thereafter become a Rule 145
Affiliate.
(b) SNB shall use its diligent efforts to cause each
person who is identified as a Rule 145 Affiliate
pursuant to clause (a) above (who has not executed
and delivered the same concurrently with the
execution of this Agreement) to execute and deliver
to Park on or before the date of mailing of the SNB
Proxy Statement, a written agreement, substantially
in the form of Exhibit A attached hereto. Because the
Merger is intended to qualify for
"pooling-of-interests" accounting treatment, the Park
Shares received by such Rule 145 Affiliates in the
Merger shall not be transferable from 30 days before
the Effective Time until such time as financial
results covering at least 30 days of post-Merger
operations have been published within the meaning of
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Section 201.01 of the SEC's Codification of Financial
Reporting Policies, regardless of whether each such
Rule 145 Affiliate has provided the written agreement
referred to in this Section, and the certificates
representing such Park Shares will bear an
appropriate restrictive legend.
5.07. TAKEOVER LAWS
SNB shall take all necessary steps to (a) exempt (or cause the
continued exemption of) this Agreement and the Merger from the requirements of
any Takeover Law and from any provisions under its articles of incorporation and
regulations, as applicable, by action of the Board of Directors of SNB or
otherwise, and (b) assist in any challenge by Park to the validity, or
applicability to the Merger, of any Takeover Law.
5.08 SNB STOCK OPTIONS
The sole holder of outstanding SNB Stock Options shall
exercise all SNB Stock Options held by such holder no later than the date on
which the shareholders of SNB adopt this Agreement.
ARTICLE SIX
FURTHER COVENANTS OF PARK
6.01. CURRENT INFORMATION
Park shall furnish to SNB promptly after such documents are
available: (a) all reports, proxy statements or other communications by Park to
its shareholders generally; and (b) all press releases relating to any
transactions.
6.02. OPPORTUNITY OF EMPLOYMENT; EMPLOYEE BENEFITS
The existing employees of SNB and the Bank shall have the
opportunity to continue as employees of Park or one of its Subsidiaries, at the
Effective Time; subject, however, to the right of Park and its Subsidiaries to
terminate any such employees for "cause." It is understood and agreed that
nothing in this Section 6.02 or elsewhere in this Agreement shall be deemed to
be a contract of employment or be construed to give said employees any rights
other than as employees at will under applicable law and said employees shall
not be deemed to be third-party beneficiaries of this provision. From and after
the Effective Time, SNB and Bank employees shall continue to participate in the
SNB Compensation and Benefit Plans (other than the SNB Stock Option Plan) in
effect at the Effective Time unless and until Park, in its sole discretion,
shall determine that SNB and Bank employees shall, subject to applicable
eligibility requirements, participate in employee benefit plans of Park and that
all or some of the SNB Compensation and Benefit Plans shall be terminated or
merged into certain employee benefit plans of Park. Notwithstanding the
foregoing, each SNB employee and each Bank employee shall be credited with years
of service with SNB, the Bank and, to the extent credit would have been given by
SNB or the Bank for years of service with a predecessor (including any business
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organization acquired by the Bank), years of service with a predecessor of the
Bank, for purposes of eligibility and vesting (but not for benefit accrual
purposes) in the employee benefit plans of Park, and shall not be subject to any
exclusion or penalty for pre-existing conditions that were covered under SNB's
Compensation and Benefit Plans immediately prior to the Effective Time, or to
any waiting period relating to such coverage. If, after the Effective Time, Park
adopts a new plan or program for its employees or executives, then to the extent
its employees or executives receive past service credits for any reason, Park
shall credit similarly-situated employees and executives of SNB and the Bank
with equivalent credit for service with SNB, the Bank or the Bank's
predecessors, to the extent that years of service credit would have been given
by SNB or the Bank for years of service with a predecessor of the Bank. The
foregoing covenants shall survive the Merger, and Park shall before the
Effective Time adopt resolutions that amend its tax-qualified retirement plans
to provide for the SNB and Bank service credits referenced herein.
6.03. AMEX LISTING
Park shall file a listing application with AMEX for the Park
Shares to be issued to the former holders of SNB Shares in the Merger at the
time prescribed by applicable rules and regulations of AMEX. In addition, Park
will use its best efforts to maintain its listing on AMEX.
6.04. TAKEOVER LAWS
Park shall take all necessary steps to (a) exempt (or cause
the continued exemption of) this Agreement and the Merger from the requirements
of any Takeover Law and from any provisions under its Articles of Incorporation
and Regulations, as applicable, by action of the Board of Directors of Park or
otherwise, and (b) assist in any challenge by SNB to the validity, or
applicability to the Merger, of any Takeover Law.
6.05. NOTIFICATION
Between the date of this Agreement and the Closing Date, Park
will promptly notify SNB in writing if Park becomes aware of any fact or
condition that (a) causes or constitutes a breach of any of its representations
and warranties, or (b) would (except as expressly contemplated by this
Agreement) cause or constitute a breach of any such representation or warranty
had such representation or warranty been made as of the time of occurrence or
discovery of such fact or condition. Should any such fact or condition require
any change in the Park Disclosure Schedule, Park will promptly deliver to SNB a
supplement to the Park Disclosure Schedule specifying such change ("Updated Park
Disclosure Schedule"). During the same period, Park will promptly notify SNB of
(i) the occurrence of any breach of any of its covenants contained in this
Agreement or (ii) the occurrence of any event that may make the satisfaction of
the conditions in this Agreement impossible or unlikely.
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6.06 OFFICERS' AND DIRECTORS' INDEMNIFICATION
(a) Following the Effective Time, Park shall indemnify,
defend and hold harmless the present Directors,
Officers and Employees of SNB and the Bank (each, an
"Indemnified Party") against costs or expenses
(including reasonable attorneys' fees), judgments,
fines, losses, claims, damages or liabilities
(collectively, "Costs") incurred in connection with
any claim, action, suit, proceeding or investigation,
whether civil, criminal, administrative or
investigative, arising out of actions or omissions
occurring on or prior to the Effective Time
(including, without limitation, the transactions
contemplated by this Agreement) to the fullest extent
that SNB or the Bank is required to indemnify (and
advance expenses to) an Indemnified Party under the
laws of the State of Ohio and the articles of
incorporation and regulations of SNB and the articles
of association and by-laws of the Bank, to the extent
applicable to the particular Indemnified Party, as in
effect on the date hereof; provided that any
determination required to be made with respect to
whether an Indemnified Party's conduct complies with
the standards set forth under Ohio law, the articles
of incorporation and regulations of SNB or the
articles of association and by-laws of the Bank shall
be made by the court in which the claim, action, suit
or proceeding was brought or by independent counsel
(which shall not be counsel that provides material
services to Park) selected by Park and reasonably
acceptable to such Indemnified Party.
(b) For a period of six years from the Effective Time,
Park shall use its reasonable best efforts to provide
that portion of directors' and officers' liability
insurance that serves to reimburse the present and
former Officers and Directors of SNB or the Bank
(determined as of the Effective Time) (as opposed to
SNB) with respect to claims against such Directors
and Officers arising from facts or events which
occurred before the Effective Time, on terms no less
favorable than those in effect on the date hereof;
provided, however, that Park may substitute therefor
policies providing at least comparable coverage
containing terms and conditions no less favorable
than those in effect on the date hereof; provided,
however that in no event shall Park be required to
expend more than 200 percent of the current amount
expended by SNB (the "Insurance Amount") to maintain
or procure such directors' and officers' liability
insurance coverage; provided, further that if Park is
unable to maintain or obtain the insurance called for
by this Section 6.06(b), Park shall use its
reasonable best efforts to obtain as much comparable
insurance as is available for the Insurance Amount;
and provided, further, that Officers and Directors of
SNB or the Bank may be required to make application
and provide customary representations and warranties
to Park's insurance carrier for the purpose of
obtaining such insurance.
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(c) Any Indemnified Party wishing to claim
indemnification under Section 6.06(a), upon learning
of any claim, action, suit, proceeding or
investigation described above, shall promptly notify
Park thereof; provided that the failure so to notify
shall not affect the obligations of Park under
Section 6.06(a) unless and to the extent that Park is
actually prejudiced as a result of such failure.
(d) If Park or any of its successors or assigns shall
consolidate with or merge into any other entity and
shall not be the continuing or surviving entity of
such consolidation or merger or shall transfer all or
substantially all of its assets to any entity, then
and in each case, proper provision shall be made so
that the successors and assigns of Park shall assume
the obligations set forth in this Section 6.06.
ARTICLE SEVEN
FURTHER OBLIGATIONS OF THE PARTIES
7.01. NECESSARY FURTHER ACTION
Each of SNB and Park agrees to use its reasonable best efforts
in good faith to take, or cause to be taken, all necessary actions and execute
all additional documents, agreements and instruments required to consummate the
transactions contemplated in this Agreement.
7.02. COOPERATIVE ACTION
Subject to the terms and conditions of this Agreement, each of
SNB and Park agrees to use its reasonable best efforts in good faith to take, or
cause to be taken, all further actions and execute all additional documents,
agreements and instruments which may be reasonably required, in the opinion of
counsel for SNB and counsel for Park, to satisfy all legal requirements of the
State of Ohio and the United States, so that this Agreement and the transactions
contemplated hereby will become effective as promptly as practicable.
7.03. SATISFACTION OF CONDITIONS
Park and SNB shall each use its reasonable best efforts to
satisfy all of the conditions to this Agreement and to cause the consummation of
the transactions described in this Agreement, including making all governmental
applications, notices and filings and taking all steps to secure promptly all
government consents, rulings and approvals which are necessary for the
performance by each party of each of its obligations under this Agreement and
the transactions contemplated hereby.
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7.04. ACCOUNTING AND TAX TREATMENT
Each of SNB and Park agrees not to take any actions subsequent
to the date of this Agreement that would adversely affect the ability of the
Surviving Corporation to treat the Merger as a "pooling-of-interests" in
accordance with GAAP or SNB or the shareholders of SNB to characterize of the
Merger as a tax-free reorganization under Section 368(a) of the Code. Each of
SNB and Park agrees to take such action as may be reasonably required, if such
action may be reasonably taken to reverse the impact of any past actions which
would adversely impact the ability of the Surviving Corporation to treat the
Merger as a "pooling-of-interests" for accounting purposes or for the Merger to
be characterized as a tax-free reorganization under Section 368(a) of the Code.
7.05. CONFIDENTIALITY
Each of SNB and Park agrees that it will not, and will cause
its representatives not to, use any confidential information obtained pursuant
to this Agreement (as well as any other information obtained prior to the date
hereof in connection with the entering into of this Agreement) for any purpose
unrelated to the consummation of the transactions contemplated by this
Agreement. Subject to the requirements of law, each party will keep
confidential, and will cause its representatives to keep confidential, all
information and documents obtained pursuant to this Agreement (as well as any
other information obtained prior to the date hereof in connection with the
entering into of this Agreement) unless such information (a) was already known
to such party, (b) becomes available to such party from other sources not known
by such party to be bound by a confidentiality obligation, (c) is disclosed with
the prior written approval of the party to which such information pertains or
(d) is or becomes readily ascertainable from published information or trade
sources. In the event that this Agreement is terminated or the transactions
contemplated by this Agreement shall otherwise fail to be consummated, each
party shall promptly cause all copies of documents or extracts thereof
containing information and data as to another party hereto, to be returned to
the party which furnished the same.
7.06. PRESS RELEASES
Each of Park and SNB shall not make any press release or other
public announcement concerning the transactions contemplated by this Agreement
without the consent of the other party hereto as to the form and contents of
such press release or announcement, except to the extent that such press release
or announcement may be required by law or AMEX rules to be made before such
consent can be obtained.
7.07. REGISTRATION STATEMENT
(a) Park agrees to prepare pursuant to all applicable
laws, rules and regulations a registration statement
on Form S-4 (the "Registration Statement") to be
filed by Park with the SEC in connection with the
issuance of Park Shares in the Merger (including the
SNB Proxy Statement constituting a part
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thereof and all related documents). SNB agrees to
cooperate, and to cause the Bank to cooperate, with
Park, its counsel and its accountants, in the
preparation of the Registration Statement and the SNB
Proxy Statement; and provided that SNB and the Bank
have cooperated as required above, Park agrees to
file the Registration Statement, which will include
the SNB Proxy Statement and a prospectus in respect
of the Park Shares to be issued in the Merger
(together, the "Proxy/Prospectus") with the SEC as
promptly as reasonably practicable. Each of SNB and
Park agrees to use all reasonable efforts to cause
the Registration Statement including the
Proxy/Prospectus to be declared effective under the
Securities Act as promptly as reasonably practicable
after the filing thereof. Park also agrees to use all
reasonable efforts to obtain, prior to the effective
date of the Registration Statement, all necessary
state securities law or "Blue Sky" permits and
approvals required to carry out the transactions
contemplated by this Agreement. SNB agrees to furnish
to Park all information concerning SNB, the Bank and
the Officers, Directors and shareholders of SNB and
the Bank as may be reasonably requested in connection
with the foregoing.
(b) Each of SNB and Park agrees, as to itself and its
Subsidiaries, that none of the information supplied
or to be supplied by it for inclusion or
incorporation by reference in (i) the Registration
Statement will, at the time the Registration
Statement and each amendment or supplement thereto,
if any, becomes effective under the Securities Act,
contain any untrue statement of a material fact or
omit to state any material fact required to be stated
therein or necessary to make the statements therein
in light of the circumstances under which they were
made, not misleading, and (ii) the Proxy
Statement/Prospectus and any amendment or supplement
thereto will, at the date of mailing to the SNB
shareholders and at the time of the SNB Meeting, as
the case may be, contain any untrue statement of a
material fact or omit to state any material fact
required to be stated therein or necessary to make
the statements therein in light of the circumstances
under where they were made not misleading. Each of
SNB and Park further agrees, if it shall become aware
prior to the Effective Time of any information
furnished by it that would cause any of the
statements in the Registration Statement and the
Proxy Statement/Prospectus to be false or misleading
with respect to any material fact, or to omit to
state any material fact necessary to make the
statements therein not false or misleading, to
promptly inform the other party thereof and to take
the necessary steps to correct the Registration
Statement and the Proxy Statement/Prospectus.
(c) Park agrees to advise SNB, promptly after Park
receives notice thereof, of the time when the
Registration Statement has become effective or any
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supplement or amendment has been filed, of the
issuance of any stop order or the suspension of the
qualification of Park Shares for offering or sale in
any jurisdiction, of the initiation or threat of any
proceeding for any such purpose, or of any request by
the SEC for the amendment or supplement of the
Registration Statement or for additional information.
7.08. REGULATORY APPLICATIONS
Park and SNB and their respective Subsidiaries shall cooperate
and use their respective reasonable best efforts to prepare all documentation,
to timely effect all filings and to obtain all permits, consents, approvals and
authorizations of all third parties and Governmental Authorities necessary to
consummate the transactions contemplated by this Agreement. Each of Park and SNB
shall have the right to review in advance, and to the extent practicable, each
will consult with the other, in each case subject to applicable laws relating to
the exchange of information, with respect to, and shall be provided in advance
so as to reasonably exercise its right to review in advance, all material
written information submitted to any third party or any Governmental Authority
in connection with the transactions contemplated by this Agreement. In
exercising the foregoing right, each of the parties hereto agrees to act
reasonably and as promptly as practicable. Each party hereto agrees that it will
consult with the other party hereto with respect to the obtaining of all
material permits, consents, approvals and authorizations of all third parties
and Governmental Authorities necessary or advisable to consummate the
transactions contemplated by this Agreement and each party will keep the other
apprised of the status of material matters relating to completion of the
transactions contemplated hereby. Each party agrees, upon request, to furnish
the other party with all information concerning itself, its Subsidiaries,
directors, officers and shareholders and such other matters as may be reasonably
necessary or advisable in connection with any filing, notice or application made
by or on behalf of such other party or of its Subsidiaries to any third party or
Governmental Authority.
7.09. DIVIDENDS
After the date of this Agreement, each of SNB and Park shall
coordinate with the other the payment of dividends with respect to the SNB
Shares and the Park Shares and the record dates and payment dates relating
thereto, it being the intention of the parties hereto that the former holders of
SNB Shares shall not receive two dividends, or fail to receive one dividend, for
any single calendar quarter with respect to their SNB Shares and/or the Park
Shares that any such holder receives in exchange for such SNB Shares in the
Merger.
7.10. SUPPLEMENTAL ASSURANCES
(a) On the date the Registration Statement becomes
effective and on the Closing Date, SNB shall deliver
to Park a certificate signed by its principal
executive officer and its principal financial officer
to the effect, to such officers' knowledge that the
information contained in the Registration Statement
relating to the business and financial condition and
affairs of
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SNB, does not contain any untrue statement of a
material fact or omit to state any material fact
required to be stated therein or necessary to make
the statements therein not misleading in light of the
circumstances under which they were made.
(b) On the date the Registration Statement becomes
effective and on the Closing Date, Park shall deliver
to SNB a certificate signed by its chief executive
officer and its chief financial officer to the
effect, to such officer's knowledge, that the
Registration Statement (other than the information
contained therein relating to the business and
financial condition and affairs of SNB) does not
contain any untrue statement of a material fact or
omit to state any material fact required to be stated
therein or necessary to make the statements therein
not misleading in light of the circumstances under
which they were made.
ARTICLE EIGHT
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PARTIES
8.01. CONDITIONS TO THE OBLIGATIONS OF PARK
The obligations of Park under this Agreement shall be subject
to the satisfaction, or written waiver by Park prior to the Closing Date, of
each of the following conditions precedent:
(a) The representations and warranties of SNB set forth
in this Agreement shall be true and correct in all
material respects as of the date of this Agreement
and as of the Closing Date as though such
representations and warranties were also made as of
the Closing Date, except (i) that those
representations and warranties that by their terms
speak as of a specific date shall be true and correct
as of such date and (ii) where the failure to be so
true and correct would not, individually or in the
aggregate, have or be reasonably likely to have a
material adverse effect on SNB and the Bank; and Park
shall have received a certificate, dated the Closing
Date, signed on behalf of SNB by the chief executive
officer and the chief financial officer of SNB to
such effect.
(b) SNB shall have performed in all material respects all
of its covenants and obligations under this Agreement
to be performed by it on or prior to the Closing
Date, including those relating to the Closing, and
Park shall have received a certificate, dated the
Closing Date, signed on behalf of SNB by the chief
executive officer and the chief financial officer of
SNB to such effect.
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(c) In the aggregate, an amount of less than ten percent
(10%) of the number of Park Shares to be issued in
the Merger shall be (i) subject to purchase as
fractional Park Share interests, and (ii) Dissenting
Shares in connection with the Merger contemplated by
this Agreement.
(d) Park shall have received the written opinion of its
counsel, dated the Closing Date, to the effect that,
on the basis of facts, representations and
assumptions set forth in such opinion, the Merger
constitutes a tax-free reorganization within the
meaning of Section 368(a) of the Code. In rendering
its opinion, counsel to Park will require and rely
upon representations contained in letters from Park
and SNB.
(e) Park shall have received the written opinion of
Thompson, Hine & Flory LLP, counsel to SNB, dated the
Closing Date, to the effect that, on the basis of the
facts, representations and assumptions set forth in
the opinion, (i) SNB is a corporation duly organized
and in good standing under the laws of the state of
Ohio, (ii) this Agreement has been duly approved by
the Board of Directors of SNB and duly adopted by the
shareholders of SNB, (iii) this Agreement has been
duly executed by SNB and constitutes a binding
obligation on SNB enforceable in accordance with its
terms against SNB, except as the same may be limited
by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, and other similar laws
relating to or affecting the enforcement of
creditors' rights generally, by general equitable
principles, regardless of whether enforceability is
considered in a proceeding in equity or at law and an
implied covenant of good faith and fair dealing, and
(iv) that upon the filing of the certificate of
merger with the Secretary of State, the Merger shall
become effective.
(f) Park shall have received a copy of a statement,
issued by SNB pursuant to Section 1.897-2(h) of the
regulations issued under the Code, certifying that
the SNB Shares are not an U.S. real property interest
and dated not more than thirty days prior to the
Closing Date.
8.02. CONDITIONS TO THE OBLIGATIONS OF SNB
The obligations of SNB under this Agreement shall be subject
to satisfaction, or written waiver by SNB prior to the Closing Date, of each of
the following conditions precedent:
(a) The representations and warranties of Park set forth
in this Agreement shall be true and correct in all
material respects as of the date of this Agreement
and as of the Closing Date as though such
representations and warranties were also made as of
the Closing Date, except (i) that representations and
warranties that by their terms speak as of a specific
date shall be true and correct as of such date and
(ii) where the failure to
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be so true and correct would not, individually or in
the aggregate, have or be reasonably likely to have a
material adverse effect on Park and its subsidiaries
taken as a whole; and SNB shall have received a
certificate, dated the Closing Date, signed on behalf
of Park by the chief executive officer and the chief
financial officer to such effect.
(b) Park shall have performed in all material respects
all of its covenants and obligations under this
Agreement to be performed by it on or prior to the
Closing Date, including those related to the Closing,
and SNB shall have received a certificate, dated the
Closing Date, signed on behalf of Park by the chief
executive officer and the chief financial officer to
such effect.
(c) SNB shall have received a letter from McDonald
Investments, Inc., dated as of the date of the SNB
Proxy Statement, to the effect that, in its opinion
as of such date, the consideration to be received by
the SNB shareholders in the Merger is fair to the
shareholders of SNB from a financial point of view.
(d) SNB shall have received the written opinion of
counsel to Park, dated the Closing Date, to the
effect that, on the basis of facts, representations
and assumptions set forth in such opinion, (i) the
Merger constitutes a tax-free reorganization within
the meaning of Section 368(a) of the Code, and (ii)
no gain or loss will be recognized by shareholders of
SNB who receive Park Shares in exchange for SNB
Shares, and cash in lieu of fractional Park Share
interests, other than the gain or loss to be
recognized as to cash received in lieu of fractional
Park Share interests. In rendering its opinion,
counsel to Park will require and rely upon
representations contained in letters from SNB and
Park.
(e) SNB shall have received the written opinion of Vorys,
Sater, Seymour and Pease LLP, counsel to Park, dated
the Closing Date, to the effect that, on the basis of
the facts, representations and assumptions set forth
in the opinion, (i) Park is a corporation in good
standing under the laws of the State of Ohio; (ii)
this Agreement has been duly executed by Park and
constitutes the binding obligation of Park,
enforceable in accordance with its terms against
Park, except as the same may be limited by
bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws
relating to or affecting the enforcement of
creditors' rights generally, by general equitable
principles (regardless of whether enforceability is
considered in a proceeding in equity or at law) and
by an implied covenant of good faith and fair
dealing; (iii) the Park Shares to be issued as Merger
Shares, when issued, shall be duly authorized, fully
paid and non-assessable; and (iv) upon the filing of
the appropriate certificate of merger with the
Secretary of State, the Merger shall become
effective.
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8.03. MUTUAL CONDITIONS
The obligations of SNB and Park under this Agreement shall be
subject to the satisfaction, or written waiver by Park and SNB prior to the
Closing Date, of each of the following conditions precedent:
(a) The shareholders of SNB shall have duly adopted this
Agreement by the required vote.
(b) All regulatory approvals required to consummate the
transactions contemplated by this Agreement shall
have been obtained and shall remain in full force and
effect and all statutory waiting periods in respect
thereof shall have expired and no such approvals or
statute, rule or order shall contain any conditions,
restrictions or requirements which Park reasonably
determines would either before or after the Effective
Time (i) have a material adverse effect on Park and
its Subsidiaries take as a whole after giving effect
to the consummation of the Merger; or (ii) prevent
Park from realizing the major portion of the economic
benefits of the Merger and the transactions
contemplated thereby that Park currently anticipates
obtaining.
(c) No Government Authority of competent jurisdiction
shall have enacted, issued, promulgated, enforced,
threatened, commenced a proceeding with respect to or
entered any statute, rule, regulation, judgment,
decree, injunction or other order (whether temporary,
preliminary or permanent) prohibiting or delaying
consummation of the transactions contemplated by this
Agreement.
(d) The Registration Statement shall have become
effective under the Securities Act and no stop order
or similar restraining order suspending the
effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose
shall have been initiated or, to the knowledge of the
parties, threatened by the SEC.
(e) Park shall have received all state securities and
"blue sky" permits and other authorizations and
approvals necessary to consummate the Merger and the
transactions contemplated hereby and no order
restraining the ability of Park to issue Park Shares
pursuant to the Merger shall have been issued and no
proceedings for that purpose shall have been
initiated or threatened by any state securities
administrator.
(f) Park and SNB shall have received from Ernst & Young
LLP, a letter dated the Closing Date, stating its
opinion that, based upon the information furnished,
the Merger shall qualify for pooling-of-interests
accounting treatment.
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(g) The Park Shares to be issued in the Merger shall have
been approved for listing on AMEX subject to official
notice of issuance.
ARTICLE NINE
CLOSING
9.01. CLOSING
The closing (the "Closing") of the transactions contemplated
by this Agreement shall be held at the offices of Park, 50 North Third Street,
Newark, Ohio 43055, commencing at 10:00 a.m., local time, on (a) the date
designated by Park, which date shall not be earlier than the third business day
to occur after the last of the conditions set forth in Article Eight shall have
been satisfied or waived in accordance with the terms of this Agreement
(excluding conditions that, by their terms, cannot be satisfied until the
Closing Date) or later than the last business day of the month in which such
third business day occurs; provided, no such election shall cause the Closing to
occur on a date after that specified in Section 11.01(b)(i) of this Agreement or
after the date or dates on which any Regulatory Authority approval or any
extension thereof expires, or (b) such other date to which the parties agree in
writing. The date of the Closing is sometimes herein called the "Closing Date."
9.02. CLOSING TRANSACTIONS REQUIRED OF PARK
At the Closing, Park shall cause all of the following to be
delivered to SNB:
(a) A certificate of merger duly executed by Park in
accordance with Section 1701.81 of the OGCL and in
appropriate form for filing with the Secretary of
State.
(b) The certificates of Park contemplated by Section
8.02(a) and (b) of this Agreement.
(c) Copies of resolutions adopted by the directors of
Park, approving this Agreement and authorizing the
consummation of the transactions described herein,
accompanied by a certificate of the secretary or
assistant secretary of Park, dated as of the Closing
Date, and certifying (i) the date and manner of
adoption of each such resolution; and (ii) that each
such resolution is in full force and effect, without
amendment, as of the Closing Date.
(d) The opinions of counsel to Park contemplated by
Sections 8.02(d) and 8.02(e) of this Agreement.
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9.03. CLOSING TRANSACTIONS REQUIRED OF SNB
At the Closing, SNB shall cause all of the following to be
delivered to Park:
(a) A certificate of merger duly executed by SNB in
accordance with Section 1701.81 of the OGCL and in
appropriate form for filing with the Ohio Secretary
of State.
(b) The certificates of SNB contemplated by Sections
8.01(a) and (b) of this Agreement.
(c) Copies of all resolutions adopted by the directors
and shareholders of SNB approving and adopting this
Agreement and authorizing the consummation of the
transactions described herein, accompanied by a
certificate of the secretary or the assistant
secretary of SNB, dated as of the Closing Date, and
certifying (i) the date and manner of the adoption of
each such resolution; and (ii) that each such
resolution is in full force and effect, without
amendment, as of the Closing Date.
(d) The opinion of counsel to SNB contemplated by Section
8.01(e) of this Agreement.
(e) The agreements referred to in Section 5.06 from each
Rule 145 Affiliate.
ARTICLE TEN
NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
10.01. NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS
The representations, warranties and covenants of Park and SNB
set forth in this Agreement, or in any document delivered pursuant to the terms
hereof or in connection with the transactions contemplated hereby, shall not
survive the Closing and the consummation of the transactions referred to herein,
other than covenants which by their terms are to survive or be performed after
the Effective Time (including, without limitation, those set forth in Sections
6.02, 6.06, 7.04 and 7.05, this Article Ten and Article Twelve); except that no
such representations, warranties or covenants shall be deemed to be terminated
or extinguished so as to deprive Park (or any director, officer or controlling
person thereof) of any defense in law or equity which otherwise would be
available against the claims of any person, including, without limitation, any
shareholder or former shareholder of either SNB or Park.
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ARTICLE ELEVEN
TERMINATION
11.01. TERMINATION
This Agreement may be terminated, and the Merger may be
abandoned, at any time prior to the Effective Time, whether prior to or after
this Agreement has been approved by the shareholders of SNB:
(a) By mutual written agreement of SNB and Park duly
authorized by action taken by or on behalf of their
respective Boards of Directors;
(b) By either SNB or Park upon written notification to
the non-terminating party by the terminating party:
(i) at any time after November 30, 2000 if the
Merger shall not have been consummated on or
prior to such date and such failure to
consummate the Merger is not caused by a
breach of this Agreement by the terminating
party;
(ii) if the approval of this Agreement by the
shareholders of SNB ("SNB Shareholders'
Approval") shall not be obtained by reason
of the failure to obtain the requisite vote
upon a vote held at a meeting of such
shareholders, or any adjournment thereof,
called therefor; or
(iii) the approval of any Governmental Authority
required for consummation of the Merger and
the other transactions contemplated by this
Agreement shall have been denied by final
non-appealable action of such Governmental
Authority.
(c) By Park by providing written notice to SNB:
(i) if prior to the Closing Date, any
representation and warranty of SNB shall
have become untrue such that the condition
set forth at Section 8.01(a) would not be
satisfied and which breach has not been
cured within 30 days following receipt by
SNB of written notice of breach or is
incapable of being cured during such time
period; or
(ii) if SNB shall have failed to comply in any
material respect with any covenant or
agreement on the part of SNB contained in
this Agreement required to be complied with
prior to the date of such termination, which
failure to comply shall not have been cured
within 30 days following receipt by SNB of
written notice of such
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failure to comply or is incapable of being
cured during such time period.
(d) By SNB by providing written notice to Park:
(i) if prior to the Closing Date, any
representation and warranty of Park shall
have become untrue such that the condition
set forth at Section 8.02(a) would not be
satisfied and which breach has not been
cured within 30 days following receipt by
Park of written notice of breach or is
incapable of being cured during such time
period;
(ii) if Park shall have failed to comply in any
material respect with any covenant or
agreement on the part of Park contained in
this Agreement required to be complied with
prior to the date of such termination, which
failure to comply shall not have been cured
within 30 days following receipt by Park of
written notice of such failure to comply or
is incapable of being cured during such time
period;
(iii) if the Board of Directors of SNB determines
in good faith, based upon advice from
outside counsel, that termination of this
Agreement is required for the Board of
Directors of SNB to comply with its
fiduciary duties to shareholders imposed by
law by reason of an Acquisition Proposal
having been made and provided SNB complied
with its obligations under Section 5.04 and
provided further that SNB's ability to
terminate pursuant to this subsection
(d)(iii) is conditioned upon the prior
payment by SNB to Park of any amounts owed
by SNB to Park pursuant to Section 11.02(b);
or
(iv) if the Board of Directors of SNB so
determines by a vote of a majority of the
members of the entire Board, at any time
during the three-day period commencing with
the Determination Date (as defined below) if
both of the following conditions are
satisfied: (A) the Average Closing Price on
the Determination Date shall be less than
$85.71; and (B) the ratio of the Average
Closing Price to the Starting Price (as
defined below), rounded to the nearest one
one-hundredth, shall be less than the number
obtained by dividing the Final Index Price
(as defined below) on the Determination Date
by the Initial Index Price (as defined
below) on the Starting Date (as defined
below), rounded to the nearest one
one-hundredth; except that the termination
notice by SNB shall not be effective and
this Agreement shall not be terminated by
such notice if Park
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gives notice to SNB within five days after
SNB's notice, that Park agrees that for
purposes of calculating the Exchange Ratio,
the number of Merger Shares shall be
increased to the number determined by
dividing $71,611,000 by the Average Closing
Price.
For purposes of this Section 11.01(d)(iv),
the following terms shall have the meanings
indicated:
"Determination Date" shall mean the date on
which the waiting period expires following
the last required approval of a Governmental
Authority with respect to the Merger.
"Final Index Price" shall mean the sum of
the Final Price for each company comprising
the Index Group multiplied by the
appropriate weighting.
"Final Price," with respect to any company
belonging to the Index Group, shall mean the
average of the daily closing sales prices of
a share of common stock of such company, as
reported on the consolidated transactions
reporting system for the market or exchange
on which such common stock is principally
traded, during the period of 20 trading days
ending on the trading day prior to the
Determination Date.
"Index Group" shall mean the 17 bank holding
companies listed below, the common stock of
which shall be publicly traded and as to
which there shall not have been a publicly
announced proposal since the Starting Date
and before the Determination Date for any
such company to be acquired. In the event
that the common stock of any such company
ceases to be publicly traded or a proposal
to acquire any such company is announced
after the Starting Date and before the
Determination Date, such company shall be
removed from the Index Group, and the
weights (which have been determined based on
the number of outstanding shares of common
stock and the market prices of such stock)
attributed to the remaining companies shall
be adjusted proportionately for purposes of
determining the Final Index Price. The 17
bank holding companies and the weights
attributed to them are as follows:
BANK HOLDING COMPANY TICKER WEIGHTING
-------------------- ------ ---------
First Merit Corporation FMER 5.882%
Provident Financial Group Inc. PFGI 5.882%
Old National Bancorp OLDB 5.882%
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BANK HOLDING COMPANY TICKER WEIGHTING
-------------------- ------ ---------
Citizens Banking Corporation CBCF 5.882%
Sky Financial Group Inc. SKYF 5.882%
Republic Bancorp Inc. RBNC 5.882%
First Financial Bancorp. FFBC 5.882%
1st Source Corporation SRCE 5.882%
National City Bancshares, Inc. NCBE 5.882%
Chemical Financial Corporation CHFC 5.882%
Irwin Financial Corporation IRWN 5.882%
Second Bancorp, Incorporated SECD 5.882%
First Merchants Corporation FRME 5.882%
BancFirst Ohio Corp. BFOH 5.882%
Capitol Bancorp Ltd. CBCL 5.882%
Independent Bank Corporation IBCP 5.882%
Peoples Bancorp Inc. PEBO 5.882%
"Index Price," on a given date, shall mean
the weighted average (weighted in accordance
with the factors listed above) of the
closing prices on such date of the common
stocks of the companies comprising the Index
Group.
"Initial Index Price" shall mean the sum of
each per share closing price of the common
stock of each company comprising the Index
Group multiplied by the applicable
weighting, as such prices are reported on
the consolidated transactions reporting
system for the market or exchange on which
such common stock is principally traded on
the Starting Date.
"Starting Date" shall mean the last trading
day immediately preceding the date of the
first public announcement of entry into this
Agreement.
"Starting Price" shall mean the closing
price of a Park Share on AMEX (as reported
in The Wall Street Journal, or if not
reported therein, in another authoritative
source) on the Starting Date.
If any company belonging in the Index Group
declares or effects a stock dividend,
reclassification, recapitalization,
split-up, combination, exchange of shares or
similar transaction between the Starting
Date and the Determination Date, the prices
for the common stock of such company shall
be appropriately adjusted for the purposes
of applying this Section 11.01(d)(iv).
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11.02. EFFECT OF TERMINATION.
(a) If this Agreement is validly terminated by either SNB
or Park pursuant to Section 11.01, this Agreement
will forthwith become null and void and there will be
no liability or obligation on the part of either SNB
or Park, except (i) that the provisions of Sections
5.04, 7.05, 7.06, 7.07(b) and 12.07 and this Section
11.02 will continue to apply following any such
termination, (ii) that nothing contained herein shall
relieve any party hereto from liability for willful
breach of its representations, warranties, covenants
or agreements contained in this Agreement and (iii)
as provided in paragraph (b) below.
(b) In the event that any person or group shall have made
an Acquisition Proposal and thereafter (i) this
Agreement is terminated by SNB pursuant to Section
11.01(d)(iii) or (ii) this Agreement is terminated
for any other reason (other than by reason of a
breach of this Agreement by Park or termination by
either party pursuant to 11.01(b)(iii)) and, in the
case of this clause (ii) only, a definitive agreement
with respect to such Acquisition Proposal is executed
within one year after such termination, then SNB
shall pay to Park, by wire transfer of same day
funds, either on the date contemplated in Section
11.01(d)(iii) if applicable, or otherwise, within two
(2) business days after such amount becomes due, a
termination fee of $2,000,000.
(c) In the event of a termination of this Agreement
pursuant to which a payment is made in full
compliance with Section 11.02(b), the receipt of such
payment shall serve as liquidated damages with
respect to any breach of this Agreement by the party
who has made such payment giving rise to such
termination, and the receipt of any such payment
shall be the sole and exclusive remedy (at law or in
equity) with respect to any such breach. In the event
any action, suit, proceeding or claim is commenced or
asserted by a party against another party and/or any
director or officer of such other party relating,
directly or indirectly, to this Agreement, it is
expressly agreed that no party shall be entitled to
obtain any punitive, exemplary, treble, or
consequential damages of any type under any
circumstances in connection with such action, suit,
proceeding or claim, regardless of whether such
damages may be available under law, the parties
hereby waiving their rights, if any, to recover any
such damages in connection with any such action,
suit, proceeding or claim.
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ARTICLE TWELVE
MISCELLANEOUS
12.01. NOTICES
All notices, requests, demands and other communications
required or permitted to be given under this Agreement shall be given in writing
and shall be deemed to have been given if delivered by hand, by express service,
telecopied (with confirmation of receipt) or sent by certified mail, postage
prepaid, return receipt requested, to the following addresses:
If to SNB, to:
SNB Corp.
499 S. Broadway
Greenville, OH 45331
Attention: President
Facsimile Number: (937) 548-2139
with a copy to:
Thompson Hine & Flory LLP
2000 Courthouse Plaza, N.E.
Dayton, OH 45402
Attention: Joseph M. Rigot
Facsimile Number: (937) 443-6635
If to the Corporation, to:
Park National Corporation
50 North Third Street
Newark, Ohio 43055
Attention: C. Daniel DeLawder
Facsimile Number: (740) 349-3765
with a copy to:
Vorys, Sater, Seymour and Pease LLP
52 East Gay Street
P.O. Box 1008
Columbus, OH 43216-1008
Attention: Elizabeth Turrell Farrar
Facsimile Number: (614) 719-4708
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Any party to this Agreement may, by notice given in accordance with this
section, designate a new address for notices, requests, demands and other
communications to such party.
12.02. COUNTERPARTS
This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be a duplicate original, but all of which taken
together shall be deemed to constitute a single instrument.
12.03. ENTIRE AGREEMENT
This Agreement (including each exhibit and schedule provided
pursuant hereto) represents the entire agreement between the parties hereto in
respect of the subject matter of this Agreement and supersedes any and all prior
and contemporaneous agreements between the parties hereto in connection with the
subject matter of this Agreement.
12.04. SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns (including successive, as well as
immediate, successors and assigns) of the parties hereto. This Agreement may not
be assigned by either party hereto without the prior written consent of the
other party.
12.05. CAPTIONS
The captions contained in this Agreement are included only for
convenience of reference and do not define, limit, explain or modify this
Agreement or its interpretation, construction or meaning and are in no way to be
construed as part of this Agreement.
12.06. GOVERNING LAW
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Ohio, without giving effect to
principles of conflicts or choice of laws (except to the extent that mandatory
provisions of Federal law are applicable).
12.07. PAYMENT OF FEES AND EXPENSES
Except as otherwise agreed in writing, each party hereto shall
pay all costs and expenses, including legal and accounting fees, and all
expenses relating to its performance of, and compliance with, its undertakings
herein, except that printing and mailing expenses shall be shared equally
between SNB and Park. All fees to be paid to Regulatory Authorities and the SEC
in connection with the transactions contemplated by this Agreement shall be
borne by Park.
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12.08. AMENDMENT
From time to time and at any time prior to the Effective Time,
this Agreement may be amended only by an agreement in writing executed in the
same manner as this Agreement, after authorization of such action by the Boards
of Directors of the Constituent Corporations; except that after the SNB Meeting,
this Agreement may not be amended if it would violate the OGCL or the federal
securities laws.
12.09. WAIVER
The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power or privilege, and no single or partial exercise of any such right, power
or privilege will preclude any other or further exercise of such right, power or
privilege or the exercise of any other right, power or privilege.
12.10. DISCLOSURE SCHEDULES
In the event of any inconsistency between the statements in
the body of this Agreement and those in the respective Disclosure Schedules
(other than an exception expressly set forth as such in the Disclosure Schedules
with respect to a specifically identified representation or warranty), the
statements in the body of this Agreement will control.
12.11. NO THIRD-PARTY RIGHTS
Except as specifically set forth herein, nothing expressed or
referred to in this Agreement will be construed to give any person other than
the parties to this Agreement any legal or equitable right, remedy or claim
under or with respect to this Agreement or any provision of this Agreement. This
Agreement and all of its provisions and conditions are for the sole and
exclusive benefit of the parties to this Agreement and their successors and
assigns.
12.12. WAIVER OF JURY TRIAL
Each of the parties hereto irrevocably waives any and all
right to trial by jury in any legal proceeding arising out of or related to this
Agreement or the transactions contemplated hereby.
12.13. SEVERABILITY
If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
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IN WITNESS WHEREOF, this Agreement and Plan of Merger has been
executed on behalf of Park National Corporation and SNB Corp. to be effective as
of the date set forth in the first paragraph above.
ATTEST: PARK NATIONAL CORPORATION
____________________________ By:______________________________
Name:____________________________
Title:___________________________
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ATTEST: SNB CORP.
______________________________ By:_______________________________
Name:_____________________________
Title:____________________________
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Exhibit to Schedules to
Agreement and Plan of Merger
dated as of December 17, 1999
by and between
Park National Corporation
and SNB Corp.
-------------
1. Exhibit A - Form of SNB Corp. Affiliate Agreement.
2. Disclosure Schedules.
The above-described Exhibit and Schedules are not being filed herewith.
Park National agrees to furnish supplementally a copy of any omitted Exhibit or
Schedule to the Securities and Exchange Commission upon request.
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