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Exhibit 2
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AGREEMENT AND PLAN OF MERGER
DATED AS OF OCTOBER 28, 1996
BETWEEN
PARK NATIONAL CORPORATION
AND
FIRST-XXXX BANC CORP.
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TABLE OF CONTENTS
PAGE
ARTICLE I
THE MERGER............................................................................................. 1
1.1. Effective Time of the Merger......................................................... 1
1.2. Closing.............................................................................. 1
1.3. Effects of the Merger................................................................ 2
ARTICLE II
CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES......................................................... 3
2.1. Conversion of Shares................................................................. 3
(a) Cancellation of Treasury Shares and Park-Owned Shares, etc.................. 3
(b) Conversion of First-Xxxx Common Shares...................................... 3
(c) Exchange Ratio.............................................................. 4
(d) Termination Below $45.50 But Equal to or Greater Than 90 Percent............ 5
(e) Termination Below 90 Percent................................................ 5
2.2. Exchange of Certificates............................................................. 5
(a) Exchange Agent.............................................................. 5
(b) Exchange Procedures......................................................... 5
(c) Distributions with Respect to Unexchanged Shares; Voting.................... 6
(d) No Further Ownership Rights in Common Shares................................ 6
(e) No Fractional Shares........................................................ 7
(f) Termination of Exchange Fund................................................ 7
(g) No Liability................................................................ 7
(h) First-Xxxx Stock Transfer Books............................................. 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES......................................................................... 8
3.1. Representations and Warranties of First-Xxxx......................................... 8
(a) Organization, Standing and Power............................................ 8
(b) Capital Structure........................................................... 8
(c) Authority................................................................... 10
(d) SEC Documents............................................................... 11
(e) Information Supplied........................................................ 11
(f) Compliance with Applicable Laws............................................. 12
(g) Litigation.................................................................. 12
(h) Taxes....................................................................... 12
(i) Certain Agreements.......................................................... 13
(j) Benefit Plans............................................................... 13
(k) Subsidiaries................................................................ 14
(l) Agreements with Bank Regulators............................................. 14
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(m) Absence of Certain Changes or Events........................................ 15
(n) Certain Provisions of Articles of Incorporation Not Applicable.............. 15
(o) Vote Required............................................................... 15
(p) Accounting Matters.......................................................... 15
(q) Properties.................................................................. 15
(r) Ownership of Park Common Shares............................................. 16
(s) Brokers or Finders.......................................................... 16
(t) Labor Matters............................................................... 16
(u) Environmental Matters....................................................... 16
(v) CRA Compliance.............................................................. 16
(w) Capital Requirements........................................................ 17
(x) Loan Losses................................................................. 17
3.2. Representations and Warranties of Park............................................... 17
(a) Organization, Standing and Power............................................ 17
(b) Capital Structure........................................................... 17
(c) Authority................................................................... 18
(d) SEC Documents............................................................... 19
(e) Information Supplied........................................................ 19
(f) Compliance with Applicable Laws............................................. 20
(g) Litigation.................................................................. 20
(h) Taxes....................................................................... 20
(i) Certain Agreements.......................................................... 20
(j) Benefit Plans............................................................... 21
(k) Subsidiaries................................................................ 22
(l) Agreements with Bank Regulators............................................. 22
(m) Absence of Certain Changes or Events........................................ 22
(n) Certain Provisions of Articles of Incorporation Not Applicable.............. 22
(o) Vote Required............................................................... 23
(p) Accounting Matters.......................................................... 23
(q) Properties.................................................................. 23
(r) Ownership of First-Xxxx Common Shares....................................... 23
(s) Brokers or Finders.......................................................... 23
(t) Labor Matters............................................................... 24
(u) Environmental Matters....................................................... 24
(v) CRA Compliance.............................................................. 24
(w) Capital Requirements........................................................ 24
(x) Loan Losses................................................................. 24
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS.............................................................. 25
4.1. Covenants of First-Xxxx and Park..................................................... 25
(a) Ordinary Course............................................................. 25
(b) Dividends; Changes in Shares................................................ 25
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(c) Issuance of Securities...................................................... 25
(d) Governing Documents......................................................... 26
(e) Exclusivity................................................................. 26
(f) No Acquisitions............................................................. 26
(g) No Dispositions............................................................. 26
(h) Indebtedness................................................................ 26
(i) Other Actions............................................................... 27
(j) Advice of Changes; Government Filings....................................... 27
(k) Accounting Methods.......................................................... 28
(l) Pooling and Tax-Free Reorganization Treatment............................... 28
(m) Compensation and Benefit Plans.............................................. 28
ARTICLE V
ADDITIONAL AGREEMENTS.................................................................................. 28
5.1. Preparation of S-4, and the Proxy Statement.......................................... 28
5.2. Access to Information................................................................ 29
5.3. Shareholder Meetings................................................................. 29
5.4. Legal Conditions to Merger........................................................... 30
5.5. Affiliates........................................................................... 30
5.6. Stock Exchange Listing............................................................... 30
5.7. Employee Benefit Plans............................................................... 30
5.8. Stock Options........................................................................ 30
5.9. Costs and Expenses................................................................... 31
5.10. Governance........................................................................... 31
5.11. Indemnification...................................................................... 31
5.12. Dividends............................................................................ 32
5.13. Title Insurance...................................................................... 33
5.14. Survey............................................................................... 33
5.15. Forms 13D or 13G Filings............................................................. 33
5.16. Tax Representations.................................................................. 33
5.17. Additional Agreements................................................................ 33
ARTICLE VI
CONDITIONS PRECEDENT................................................................................... 34
6.1. Conditions to Each Party's Obligation To Effect the Merger........................... 34
(a) Shareholder Approval........................................................ 34
(b) AMEX Listing................................................................ 34
(c) Other Approvals............................................................. 34
(d) S-4......................................................................... 34
(e) No Injunctions or Restraints; Illegality.................................... 34
(f) Pooling..................................................................... 34
(g) Burdensome Condition........................................................ 35
6.2. Conditions to Obligations of Park.................................................... 35
(a) Representations and Warranties.............................................. 35
(b) Performance of Obligations of First-Xxxx.................................... 35
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(c) Consents Under Agreements................................................... 35
(d) Tax Opinion................................................................. 35
(e) Legal Opinion............................................................... 36
(f) Fairness Opinion............................................................ 36
6.3. Conditions to Obligations of First-Xxxx.............................................. 36
(a) Representations and Warranties.............................................. 36
(b) Performance of Obligations of Park.......................................... 36
(c) Consents Under Agreements................................................... 36
(d) Tax Opinion................................................................. 36
(e) Legal Opinion............................................................... 37
(f) Authorization of Shares..................................................... 37
(g) Fairness Opinion............................................................ 37
ARTICLE VII
TERMINATION AND AMENDMENT.............................................................................. 37
7.1. Termination.......................................................................... 37
7.2. Effect of Termination................................................................ 38
7.3. Amendment............................................................................ 39
7.4. Extension; Waiver.................................................................... 39
ARTICLE VIII
GENERAL PROVISIONS..................................................................................... 39
8.1. Nonsurvival of Representations, Warranties and Agreements............................ 39
8.2. Notices.............................................................................. 39
8.3. Interpretation....................................................................... 40
8.4. Counterparts......................................................................... 41
8.5. Entire Agreement; No Third Party Beneficiaries; Rights of Ownership.................. 41
8.6. Governing Law........................................................................ 41
8.7. Severability......................................................................... 41
8.8. Assignment........................................................................... 41
8.9. Press Releases and Public Announcements.............................................. 41
EXHIBITS
Exhibit 5.5 Affiliate Agreement......................................................... 43
Exhibit 6.2(e) Opinion of Counsel for First-Xxxx........................................... 46
Exhibit 6.3(e) Opinion of Counsel for Park................................................. 47
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INDEX OF DEFINED TERMS
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Section Page
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AMEX............................................................... 5.6 4
AMEX Listing....................................................... 6.1(b) 34
Agreement.......................................................... Intro 1
Bank Regulators.................................................... 3.1(f) 12
Benefit Plans...................................................... 3.1(j) 13
BHC Act............................................................ 3.1(a) 8
Burdensome Condition............................................... 6.1(g) 35
Certificate of Merger.............................................. 1.1 1
Closing............................................................ 1.2 1
Closing Date....................................................... 1.2 2
Code............................................................... Intro 1
Confidentiality Agreements......................................... 5.2 29
Consents........................................................... 6.1(c) 34
Constituent Corporations........................................... 1.3(b) 2
Costs and Expenses................................................. 5.9 31
CRA................................................................ 3.1(v) 16
Xxxxxxxxx.......................................................... 3.2(s) 16
DPC Shares......................................................... 2.1(a) 3
Effective Time..................................................... 1.1 1
ERISA.............................................................. 3.1(j) 13
Exchange Act....................................................... 3.1(c) 11
Exchange Agent..................................................... 2.2 5
Exchange Fund...................................................... 2.2 5
Exchange Ratio..................................................... 2.1(c) 4
Farmers............................................................ 3.1(a) 8
FDIA............................................................... 3.1(c) 10
Federal Reserve.................................................... 3.1(c) 10
First-Xxxx......................................................... Intro 1
First-Xxxx Bank.................................................... 3.1(a) 8
First-Xxxx Benefit Plans........................................... 3.1(j) 13
First-Xxxx Certificates............................................ 2.2 5
First-Xxxx Common Shares........................................... 2.1 3
First-Xxxx Dividend Reinvestment Plan.............................. 3.1(b) 9
First-Xxxx Permits................................................. 3.1(f) 12
First-Xxxx Plan.................................................... 5.8 30
First-Xxxx SAR..................................................... 5.8 30
First-Xxxx SEC Documents........................................... 3.1(d) 11
First-Xxxx Stock Option............................................ 5.8 30
First-Xxxx Stock Option Plans...................................... 3.1(b) 8
First-Xxxx Stock Plans............................................. 3.1(b) 9
FRA................................................................ 3.1(c) 10
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Section Page
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Governmental Entity................................................ 3.1(c) 10
Indemnified Liabilities............................................ 5.11 31
Indemnified Parties................................................ 5.11 31
Injunction......................................................... 6.1(e) 34
Material adverse effect............................................ 3.1(a) 8
McDonald........................................................... 6.2(f) 36
Merger............................................................. Intro 1
OGCL............................................................... 1.1 1
Option Exercise Cash Payment Total................................. 2.1(c) 4
Park............................................................... Intro 1
Park Benefit Plans................................................. 3.2(j) 00
Xxxx Xxxxxx Shares................................................. 1.3 3
Park Index Price................................................... 2.1(c) 4
Park Option Plan................................................... 3.2(b) 18
Park Permits....................................................... 3.2(f) 20
Park SEC Documents................................................. 3.2(d) 19
Park Stock Plans................................................... 3.2(b) 18
Park Trading Price................................................. 2.1(c) 4
Proxy Statement.................................................... 3.1(c) 10
Real Property...................................................... 5.13 33
Representatives.................................................... 5.2(e) 29
Requisite Regulatory Approvals..................................... 6.1(c) 34
S-4................................................................ 3.1(e) 11
SARs............................................................... 3.1(b) 9
SEC................................................................ 3.1(a) 8
Securities Act..................................................... 3.1(d) 11
Significant Subsidiary............................................. 3.1(a) 8
State Banking Approval............................................. 3.1(c) 11
Subsidiary......................................................... 2.1(a) 3
Surviving Corporation.............................................. 1.3(b) 2
Takeover Proposal.................................................. 4.1(e) 26
Tax, Taxes, Taxable................................................ 3.1(h) 12
Total First-Xxxx Common Shares Outstanding or
Subject to Options............................................... 2.1(c) 4
Trust account shares............................................... 2.1(a) 3
Violation.......................................................... 3.1(c) 10
Voting Debt........................................................ 3.1(b) 9
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AGREEMENT AND PLAN OF MERGER dated as of October 28, 1996 (this
"Agreement") between PARK NATIONAL CORPORATION, an Ohio corporation ("Park"),
and FIRST-XXXX BANC CORP., an Ohio corporation ("First-Xxxx").
WHEREAS, the Boards of Directors of Park and First-Xxxx have approved,
and deem it advisable and in the best interests of their respective corporations
to consummate, the business combination transaction provided for herein in which
First-Xxxx would merge with and into Park (the "Merger");
WHEREAS, the Boards of Directors of Park and First-Xxxx have each
determined that the Merger contemplated hereby is consistent with, and in
furtherance of, their respective business strategies and goals;
WHEREAS, Park and First-Xxxx desire to make certain representations,
warranties, covenants and agreements in connection with the Merger and also to
prescribe various conditions to the Merger;
WHEREAS, for Federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization under the provisions of Section 368(a)
of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, for accounting purposes, it is intended that the Merger shall
be accounted for as a "pooling of interests";
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1. Effective Time of the Merger. Subject to the provisions of this
Agreement, a certificate of merger (the "Certificate of Merger") shall be
duly prepared, executed and acknowledged by Park and First-Xxxx, and
thereafter delivered on the Closing Date (as defined in Section 1.2) to the
Secretary of State of the State of Ohio, for filing, as provided in the Ohio
General Corporation Law (the "OGCL"). The Merger shall become effective
upon the filing of the Certificate of Merger with the Secretary of State of the
State of Ohio or at such time thereafter as is agreed to in writing by the
parties hereto and so provided in the Certificate of Merger (the "Effective
Time").
1.2. Closing. The closing of the Merger (the "Closing") shall take
place at 10:00 a.m. on the first day which is (a) the last business day of a
month and (b) at least ten business days after satisfaction or waiver (subject
to applicable law) of the conditions (excluding conditions that, by their terms,
cannot be satisfied until the Closing Date) set forth in Article VI (the
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"Closing Date"), unless another time or date is agreed to in writing by the
parties hereto. The Closing shall be held at such location in the State of Ohio
as is agreed to in writing by the parties hereto.
1.3. Effects of the Merger. (a) At the Effective Time:
(i) First-Xxxx shall be merged with and into Park and the separate
existence of First-Xxxx shall cease;
(ii) the Articles of Incorporation of Park as in effect immediately
prior to the Effective Time shall be the Articles of Incorporation of the
Surviving Corporation (as defined in Section 1.3(b));
(iii) the Regulations of Park as in effect immediately prior to the
Effective Time (as amended as provided for in Section 1.3(a)(iv) and to reflect
such other amendments thereto as may be contemplated by this Agreement) shall be
the Regulations of the Surviving Corporation; and
(iv) the maximum allowable number of directors of the Surviving
Corporation, as specified in the Regulations of the Surviving Corporation, shall
be decreased to sixteen and the number of directors shall be fixed at sixteen,
with twelve members to be selected by Park in its sole discretion from the Board
of Directors of Park immediately prior to the Effective Time, of which four such
members will have terms expiring in each of 1998, 1999, and 2000; and with four
members to be selected by Park, after consultation with First-Xxxx, from the
Board of Directors of First-Xxxx immediately prior to the Effective Time, of
which one member shall have a term expiring in each of 1998 and 1999 and two
members shall have terms expiring in 2000.
(v) the Surviving Corporation shall, to the extent permitted by
applicable law and Bank Regulators (as defined in Section 3.1(f)), maintain
First-Xxxx Bank (as defined in Section 3.1(a)) as a separate Subsidiary (as
defined in Section 2.1(a)), using its existing name for at least four years
following the Effective Time, and allow First-Xxxx Bank's existing directors to
complete their respective terms (or, if longer, an additional term through at
least March, 1998), subject to compelling business reasons, regulatory
considerations, safe banking practices and the fiduciary duties of the Board of
Directors of Park.
(b) As used in this Agreement, "Constituent Corporations" shall mean
Park and First-Xxxx, and "Surviving Corporation" shall mean Park, at and after
the Effective Time, as the surviving corporation in the Merger.
(c) At and after the Effective Time, the Merger will have the effects
set forth in the OGCL, including that the Surviving Corporation will be
responsible for all obligations of the Constituent Corporations.
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ARTICLE II
CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES
2.1. Conversion of Shares. As of the Effective Time, by virtue of the
Merger and without any action on the part of the holder of common shares, par
value $3.125 per share, of First-Xxxx ("First-Xxxx Common Shares"):
(a) Cancellation of Treasury Shares and Park-Owned Shares, etc. All
First-Xxxx Common Shares that are owned by First-Xxxx as treasury shares and all
First-Xxxx Common Shares, if any, that are owned by Park or any wholly-owned
Subsidiary of Park or of First-Xxxx (other than shares held in trust, managed,
custodial or nominee accounts and the like, or held by mutual funds for which a
Subsidiary of Park or First-Xxxx acts as investment advisor, that in any such
case are beneficially owned by third parties (any such shares, "trust account
shares") and shares acquired in respect of debts previously contracted (any such
shares, "DPC shares")) shall be canceled and retired and shall cease to exist
and no common shares, without par value, of Park ("Park Common Shares") or other
consideration shall be delivered in exchange therefor. All Park Common Shares,
if any, that are owned by First-Xxxx (other than trust account shares and DPC
shares) shall become treasury shares. As used in this Agreement, the word
"Subsidiary" when used with respect to any party means any corporation or other
organization, whether incorporated or unincorporated, (i) of which such party or
any other Subsidiary of such party is a general partner (excluding partnerships,
the general partnership interests of which held by such party or any Subsidiary
of such party do not have a majority of the voting interests in such
partnership), or (ii) at least a majority of the securities or other interests
of which having by their terms ordinary voting power to elect a majority of the
board of directors or others performing similar functions with respect to such
corporation or other organization is directly or indirectly owned or controlled
by such party or by any one or more of its Subsidiaries, or by such party and
one or more of its Subsidiaries.
(b) Conversion of First-Xxxx Common Shares. Subject to Section 2.2(e),
each First-Xxxx Common Share issued and outstanding immediately prior to the
Effective Time (other than shares to be canceled in accordance with Section
2.1(a)) shall be converted into that number of fully paid and nonassessable Park
Common Shares as is equal to the Exchange Ratio determined in accordance with
Section 2.1(c). All such First-Xxxx Common Shares shall no longer be outstanding
and shall automatically be canceled and retired and shall cease to exist, and
each certificate previously representing any such shares shall thereafter
represent the Park Common Shares into which such First-Xxxx Common Shares have
been converted. Certificates previously representing shares of First-Xxxx Common
Shares shall be exchanged for certificates representing whole Park Common Shares
issued in consideration therefor upon the surrender of such certificates in
accordance with Section 2.2, without interest.
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(c) Exchange Ratio.
(i) If (A) the Park Trading Price (as defined in Section 2.1(c)(iii))
is equal to or greater than 90 percent of the Park Index Price (as defined in
Section 2.1(c)(iv)) and (B) the Option Exercise Cash Payment Total (as defined
in Section 2.1(c)(v)) is equal to or greater than $1,500,000, the Exchange Ratio
shall be equal to:
2,345,000
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Total First-Xxxx Common Shares Outstanding or Subject to Options
(as defined in Section 2.1(c)(vi))
(unless the parties agree to increase the Exchange Ratio or this
Agreement is terminated pursuant to Section 2.1(d)).
(ii) If (A) the Park Trading Price is equal to or greater than 90
percent of the Park Index Price and (B) the Option Exercise Cash Payment Total
is less than $1,500,000, the Exchange Ratio shall be equal to:
2,345,000 - [($1,500,000 - Option Exercise Cash Payment Total)/Park Index Price]
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Total First-Xxxx Common Shares Outstanding or Subject to Options
(unless the parties agree to increase the Exchange Ratio or this
Agreement is terminated pursuant to Section 2.1(d)).
(iii) "Park Trading Price" shall mean the average closing-sale price
per Park Common Share on the American Stock Exchange ("AMEX") (as reported by
THE WALL STREET JOURNAL or, if not reported thereby, another authoritative
source) for the five trading days (as hereinafter defined in this Section
2.1(c)(iii)) ending on the tenth business day immediately preceding the Closing
Date. As used in this Agreement, "trading days" shall mean days on which actual
trades of Park Common Shares occur.
(iv) "Park Index Price" shall mean $48.75 per Park Common Share.
(v) "Option Exercise Cash Payment Total" shall mean the total of (A)
the cash paid to First-Xxxx as a result of the exercise of First-Xxxx Stock
Options (as defined in Section 5.8(a)) prior to or at the Closing and (B) the
exercise price of any First-Xxxx Stock Options which are not exercised prior to
or at the Closing.
(vi) "Total First-Xxxx Common Shares Outstanding or Subject to Options"
shall mean the sum of (A) the total number of First-Xxxx Common Shares issued
and outstanding immediately prior to the Effective Time (other than shares to be
canceled in accordance with Section 2.1(a)), plus (B) the total number of
First-Xxxx Common Shares which are subject to a First-Xxxx Stock Option (as
defined in Section 5.8(a)) immediately prior to the Effective Time.
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(d) Termination Below $45.50 But Equal to or Greater Than 90 Percent.
If (i) the Park Trading Price is less than $45.50 but equal to or greater than
90 percent of the Park Index Price and (ii) the SNL All Bank Index Percentage
(as hereinafter defined in this Section 2.1(d)) is greater than the percentage
determined by dividing the Park Trading Price by the Park Index Price,
First-Xxxx may elect by giving written notice to Park prior to the third
business day immediately preceding the Closing Date to terminate this Agreement
pursuant to Section 7.1(e) and this Agreement shall terminate on the Closing
Date with the effect thereof being as specified in Section 7.2. "SNL All Bank
Index Percentage" shall be equal to the percentage determined by dividing (y)
the average of the SNL All Bank Index for the five trading days ending on the
tenth business day immediately preceding the Closing Date, by (z) the SNL All
Bank Index as of the close of trading on October 25, 1996.
(e) Termination Below 90 Percent. If the Park Trading Price is less
than 90 percent of the Park Index Price, First-Xxxx may elect by giving written
notice to Park prior to the third business day immediately preceding the Closing
Date to terminate this Agreement pursuant to Section 7.1(e) and this Agreement
shall terminate on the Closing Date with the effect thereof being as specified
in Section 7.2.
2.2. Exchange of Certificates. (a) Exchange Agent. As of the Effective
Time, Park shall deposit, or shall cause to be deposited, with Registrar and
Transfer Company (the "Exchange Agent"), for the benefit of the holders of
certificates which immediately prior to the Effective Time evidenced First-Xxxx
Common Shares (the "First-Xxxx Certificates"), for exchange in accordance with
this Article II, certificates representing the Park Common Shares and an amount
of cash necessary to pay cash in lieu of fractional shares in accordance with
Section 2.2(e) (such certificates for Park Common Shares, together with any
dividends or distributions with respect thereto, and such cash for fractional
share interests being hereinafter referred to as the "Exchange Fund") issuable
pursuant to Section 2.1 in exchange for such First-Xxxx Common Shares.
(b) Exchange Procedures. As soon as reasonably practicable after the
Effective Time (but no later than the fifth business day following the Effective
Time), the Exchange Agent shall mail to each holder of record of First-Xxxx
Common Shares immediately prior to the Effective Time whose shares were
converted into Park Common Shares pursuant to Section 2.1, (i) a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the First-Xxxx Certificates shall pass, only upon delivery of
the First-Xxxx Certificates to the Exchange Agent, and which shall be in such
form and have such other provisions as Park may reasonably specify) and (ii)
instructions for use in effecting the surrender of the First-Xxxx Certificates
in exchange for certificates representing Park Common Shares. Upon surrender by
such holder of a certificate or certificates representing all First-Xxxx Common
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
First-Xxxx Certificate or Certificates shall be entitled to receive in exchange
therefor a certificate representing that number of whole Park Common Shares
which such holder has the right to receive in respect of the First-Xxxx
Certificate or Certificates surrendered pursuant to the provisions of this
Article II (after taking into account all First-Xxxx Common Shares then held by
such holder), and the First-Xxxx
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Certificate or Certificates so surrendered shall forthwith be canceled. In the
event of a transfer of ownership of First-Xxxx Common Shares which is not
registered in the transfer records of First-Xxxx, a certificate representing the
proper number of shares of Park Common Shares may be issued to a transferee if
the First-Xxxx Certificate representing such First-Xxxx Common Shares is
presented to the Exchange Agent, accompanied by all documents required to
evidence and effect such transfer and by evidence that any applicable stock
transfer taxes have been paid. With respect to uncertificated First-Xxxx Common
Shares (including fractional shares), the Exchange Agent shall issue
certificates representing that number of whole Park Common Shares (plus any cash
in lieu of fractional Park Common Shares) into which such uncertificated
First-Xxxx Common Shares have been converted (after taking into account all
First-Xxxx Common Shares then held by such holder) upon receipt of evidence of
ownership satisfactory to the Exchange Agent. Until surrendered as contemplated
by this Section 2.2, each First-Xxxx Certificate shall be deemed at any time
after the Effective Time for all corporate purposes (except as provided in
Section 2.2(c)) to represent only the number of whole Park Common Shares into
which the First-Xxxx Common Shares represented by such First-Xxxx Certificate or
Certificates have been converted as provided in this Article II and the right to
receive upon such surrender cash in lieu of any fractional Park Common Shares as
contemplated by this Section 2.2.
(c) Distributions with Respect to Unexchanged Shares; Voting. (i)
Dividends or other distributions declared or made after the Effective Time with
respect to Park Common Shares with a record date after the Effective Time shall
be paid to the holder of any unsurrendered First-Xxxx Certificate with respect
to the Park Common Shares represented thereby, and any cash payment in lieu of
fractional shares shall be paid to any such holder pursuant to Section 2.2(e),
promptly after surrender of such First-Xxxx Certificate by the holder thereof.
Subject to the effect of applicable laws, following surrender of any such
First-Xxxx Certificate, there shall be paid to the holder of the certificates
representing whole Park Common 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 Common Share to
which such holder is entitled pursuant to Section 2.2(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 Common 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 Common Shares.
(ii) Former holders of record as of the Effective Time of First-Xxxx
Common Shares shall not be entitled to vote their Park Common Shares into which
their First-Xxxx Common Shares shall have been converted on matters submitted to
the shareholders of Park until the First-Xxxx Certificates formerly representing
such shares shall have been surrendered in accordance with this Section 2.2 or
certificates evidencing such Park Common Shares shall have been issued in
exchange therefor.
(d) No Further Ownership Rights in Common Xxxxxx.Xx Further Ownership
Rights in Common Shares. All Park Common Shares issued upon conversion of
First-Xxxx Common Shares in accordance with the terms hereof (including
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any cash paid pursuant to Section 2.2(c) or 2.2(e)) shall be deemed to have been
issued in full satisfaction of all rights pertaining to such First-Xxxx Common
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 First-Xxxx on such
First-Xxxx Common Shares in accordance with the terms of this Agreement on or
prior to the Effective Time and which remain unpaid at the Effective Time, and
there shall be no further registration of transfers on the stock transfer books
of the Surviving Corporation of the First-Xxxx Common Shares which were
outstanding immediately prior to the Effective Time. If, after the Effective
Time, First-Xxxx Certificates are presented to the Surviving Corporation for any
reason, they shall be canceled and exchanged as provided in this Article II.
(e) No Fractional Shares. (i) No certificates or scrip representing
fractional Park Common Shares shall be issued upon the surrender for exchange of
First-Xxxx Certificates evidencing First-Xxxx Common Shares, and such fractional
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 First-Xxxx Common Shares who would otherwise be
entitled to receive a fractional Park Common Share shall receive from the
Exchange Agent an amount in cash equal to the product obtained by multiplying
(a) the fractional share interest to which such holder (after taking into
account all First-Xxxx Common Shares held at the Effective Time by such holder)
would otherwise be entitled by (b) the Park Trading Price. No interest shall be
payable with respect to such cash payment.
(f) Termination of Exchange Fund. Any portion of the Exchange Fund
which remains undistributed to the shareholders of First-Xxxx for six months
after the Effective Time shall be delivered to the Surviving Corporation, upon
demand, and any shareholders of First-Xxxx who have not theretofore complied
with this Article II shall thereafter look only to the Surviving Corporation for
payment of their claim for Park Common Shares, any cash in lieu of fractional
Park Common Shares and any dividends or distributions with respect to Park
Common Shares, without interest.
(g) No Liability. Neither Park nor First-Xxxx nor the Surviving
Corporation shall be liable to any holder of First-Xxxx Common Shares or Park
Common Shares, as the case may be, for such shares (or dividends or
distributions with respect thereto) or cash in lieu of fractional shares
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law.
(h) First-Xxxx Stock Transfer Books. The stock transfer books of
First-Xxxx shall be closed as of the close of business on the day that is two
business days prior to the Closing Date.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of First-Xxxx. First-Xxxx
represents and warrants to Park as follows:
(a) Organization, Standing and Power. First-Xxxx is a bank holding
company registered under the Bank Holding Company Act of 1956, as amended (the
"BHC Act"). The First-Xxxx National Bank of Mount Xxxxxx ("First-Xxxx Bank") is
a wholly-owned Subsidiary of First-Xxxx and a national banking association
organized under the laws of the United States. The Farmers and Savings Bank of
Loudonville ("Farmers") is a wholly-owned Subsidiary of First-Xxxx and a state
chartered savings bank organized under the laws of the State of Ohio. First-Xxxx
Bank and Farmers are Significant Subsidiaries (as defined below) of First-Xxxx.
There are no other Significant Subsidiaries of First-Xxxx. Each of First-Xxxx
and its Significant Subsidiaries (as defined below) is a bank or corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization, has all requisite power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted and is duly qualified and in good standing to do business
in each jurisdiction in which the nature of its business or the ownership or
leasing of its properties makes such qualification necessary other than in such
jurisdictions where the failure so to qualify would not, either individually or
in the aggregate, have a material adverse effect on First-Xxxx. The Articles of
Incorporation and Regulations of First-Xxxx and its Significant Subsidiaries,
copies of which were previously furnished to Park, are true, complete and
correct copies of such documents as in effect on the date of this Agreement. As
used in this Agreement, (i) a "Significant Subsidiary" means any Subsidiary of
First-Xxxx or Park, as the case may be, that would constitute a Significant
Subsidiary of such party within the meaning of Rule 1-02 of Regulation S-X of
the Securities and Exchange Commission (the "SEC"), (ii) 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 (iii) the
term "material adverse effect" (other than as set forth in Section 6.1(g))
means, with respect to any 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 its obligations hereunder on a timely basis.
(b) Capital Structure. (i) As of the date hereof, the authorized
capital shares of First-Xxxx consists of 6,000,000 First-Xxxx Common Shares. As
of October 1, 1996, 3,755,618 First-Xxxx Common Shares were outstanding, 209,327
First-Xxxx Common Shares were reserved for issuance upon the exercise of
outstanding stock options or pursuant to the First-Xxxx Banc Corp. 1990
Non-Qualified Stock Option and Stock Appreciation Rights Plan and the 1995
First-Xxxx Banc Corp. Stock Option and Stock Appreciation Rights Plan (such
stock options and plans collectively, the "First-Xxxx Stock Option Plans"),
268,419 First-Xxxx Common Shares were reserved for issuance, if necessary,
pursuant to the First-Xxxx Banc Corp.
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Dividend Reinvestment Plan ("First-Xxxx Dividend Reinvestment Plan" and together
with the First-Xxxx Stock Option Plans, the "First-Xxxx Stock Plans"), and no
First-Xxxx Common Shares were held by First-Xxxx in its treasury or by its
Subsidiaries (other than as trust account shares or as DPC shares). First-Xxxx
has furnished to Park a true, complete and correct copy of each of the
First-Xxxx Stock Plans and, with respect to each First-Xxxx Stock Plan that is a
stock option and/or stock appreciation rights ("SARs") plan, a list of all
participants, the number of First-Xxxx Common Shares subject to options held by
each, the number of SARs held by each, the exercise price or prices of such
options and the strike price of such SARs, and the dates each option or SAR was
granted, becomes exercisable, and expires. All outstanding First-Xxxx Common
Shares have been duly authorized and validly issued and are fully paid and
non-assessable and not subject to preemptive rights.
(ii) No bonds, debentures, notes or other indebtedness having the right
to vote on any matters on which shareholders may vote ("Voting Debt") of
First-Xxxx are issued or outstanding.
(iii) As of the date of this Agreement, except for this Agreement and
the First-Xxxx Stock Options (as defined in Section 5.8), there are no options,
warrants, calls, rights, commitments or agreements of any character to which
First-Xxxx or any Subsidiary of First-Xxxx is a party or by which it is bound
obligating First-Xxxx or any Subsidiary of First-Xxxx to issue, deliver or sell,
or cause to be issued, delivered or sold, additional capital shares or any
Voting Debt of First-Xxxx or of any Subsidiary of First-Xxxx or obligating
First-Xxxx or any Subsidiary of First-Xxxx to xxxxx, extend or enter into any
such option, warrant, call, right, commitment or agreement. Assuming compliance
by Park (and the Surviving Corporation) with Section 5.8, after the Effective
Time, there will be no option, warrant, call, right, commitments or agreement
obligating First-Xxxx or any Subsidiary of First-Xxxx to issue, deliver or sell,
or cause to be issued, delivered or sold, any capital shares or any Voting Debt
of First-Xxxx or any Subsidiary of First-Xxxx, or obligating First-Xxxx or any
Subsidiary of First-Xxxx to xxxxx, extend or enter into any such option,
warrant, call, right, commitments or agreement. As of the date hereof, there are
no outstanding contractual obligations of First-Xxxx or any of its Subsidiaries
to repurchase, redeem or otherwise acquire any capital shares of First-Xxxx or
any of its Subsidiaries.
(iv) Since September 30, 1996, First-Xxxx has not (A) issued or
permitted to be issued any capital shares, or securities exercisable for or
convertible into capital shares of First-Xxxx or any of its Subsidiaries, other
than pursuant to and as required by the terms of the First-Xxxx Dividend
Reinvestment Plan, and any employee stock options issued prior to the date
hereof under the First-Xxxx Stock Plans and outstanding on such date (or in the
ordinary course of business as permitted under such plans and consistent with
past practice); (B) repurchased, redeemed or otherwise acquired, directly or
indirectly through one or more First-Xxxx Subsidiaries, any capital shares of
First-Xxxx or any of its Subsidiaries (other than the acquisition of trust
account shares and DPC shares); or (C) declared, set aside, made or paid to the
shareholders of First-Xxxx dividends or other distributions on the outstanding
capital shares of First-Xxxx, other than regular quarterly cash dividends on the
First-Xxxx Common Shares
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at a rate not in excess of the regular quarterly cash dividends most recently
declared by First-Xxxx prior to the date of this Agreement.
(v) First-Xxxx has terminated the First-Xxxx Dividend Reinvestment Plan
effective as of the date of this Agreement.
(c) Authority. (i) First-Xxxx has all requisite corporate power and
authority to enter into this Agreement and, subject to approval of this
Agreement by the requisite vote of the holders of First-Xxxx Common Shares, to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of
First-Xxxx, subject in the case of the consummation of the Merger contemplated
hereby to the approval of this Agreement by the holders of First-Xxxx Common
Shares. This Agreement has been duly executed and delivered by First-Xxxx and
constitutes a valid and binding obligation of First-Xxxx, enforceable in
accordance with its terms.
(ii) The execution and delivery of this Agreement does not or will not,
as the case may be, and subject to the approval of this Agreement by the holders
of First-Xxxx Common Shares the consummation of the transactions contemplated
hereby will not, conflict with, or result in any violation of, or constitute a
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any obligation or the
loss of a material benefit under, or the creation of a lien, pledge, security
interest, charge or other encumbrance on any assets (any such conflict,
violation, default, right of termination, cancellation or acceleration, loss or
creation, a "Violation") pursuant to, any provision of the Articles of
Incorporation or Regulations of First-Xxxx or any Subsidiary of First-Xxxx or,
except as disclosed in writing to the other party prior to the date hereof and
subject to obtaining or making the consents, approvals, orders, authorizations,
registrations, declarations and filings referred to in paragraph (iii) below,
result in any Violation of any loan or credit agreement, note, mortgage,
indenture, lease, Benefit Plan (as defined in Section 3.1(j)) or other
agreement, obligation, instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to First-Xxxx or any Subsidiary of First-Xxxx or their respective properties or
assets, which Violation, individually or in the aggregate, would have a material
adverse effect on First-Xxxx.
(iii) No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other governmental authority or instrumentality, domestic or foreign (a
"Governmental Entity"), is required by or with respect to First-Xxxx or any
Subsidiary of First-Xxxx in connection with the execution and delivery of this
Agreement by First-Xxxx or the consummation by First-Xxxx of the transactions
contemplated hereby, the failure to make or obtain which would have a material
adverse effect on First-Xxxx, except for (A) the filing of applications and
notices with the Board of Governors of the Federal Reserve System (the "Federal
Reserve") under the BHC Act, the Federal Reserve Act (the "FRA") and the Federal
Deposit Insurance Act ("FDIA") and approval of same, (B) the filing with the SEC
of (1) a joint proxy statement in definitive form relating to the meetings of
First-Xxxx'x and Park' shareholders to be held in connection with the Merger
(the "Proxy
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Statement") and (2) such reports under Sections 13(a), 13(d), 13(g) and 16(a) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as may be
required in connection with this Agreement and the transactions contemplated
hereby and the obtaining from the SEC of such orders as may be required in
connection therewith, (C) the filing of the Certificate of Merger with the
Secretary of State of the State of Ohio, (D) if necessary, the filing of an
application with the Ohio Department of Commerce, Division of Financial
Institutions, Office of Banks and Savings & Loans (collectively, the "State
Banking Approval"), and (E) any notice required under the rules of the NASDAQ
National Market System.
(d) SEC Documents. First-Xxxx has furnished to Park a true and complete
copy of each report, schedule, registration statement and definitive proxy
statement filed by First-Xxxx with the SEC since December 31, 1994 (as such
documents have since the time of their filing been amended, the "First-Xxxx SEC
Documents"), which are all the documents that First-Xxxx was required to file
with the SEC since such date. As of their respective dates of filing with the
SEC, the First-Xxxx SEC Documents complied in all material respects with the
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
or the Exchange Act, as the case may be, and the rules and regulations of the
SEC thereunder applicable to such First-Xxxx SEC Documents, and did not contain
any untrue statement of a material fact or omit to state a 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. The
financial statements of First-Xxxx included in the First-Xxxx SEC Documents
complied as to form, as of their respective dates of filing with the SEC, in all
material respects with applicable accounting requirements and with the published
rules and regulations of the SEC with respect thereto, have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods involved (except as may be indicated in the notes
thereto or, in the case of the unaudited statements, as permitted by Form 10-Q
of the SEC) and fairly present in all material respects the consolidated
financial position of First-Xxxx and its consolidated Subsidiaries as at the
dates thereof and the consolidated results of operations, changes in
shareholders' equity and cash flows of such companies for the periods then
ended. All material agreements, contracts and other documents required to be
filed as exhibits to any of the First-Xxxx SEC Documents have been so filed.
(e) Information Supplied. None of the information supplied or to be
supplied by First-Xxxx for inclusion or incorporation by reference in (i) the
registration statement on Form S-4 to be filed with the SEC by Park in
connection with the issuance of Park Common Shares in the Merger (the "S-4")
will, at the time the S-4 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 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 will, at the
date of mailing to shareholders and at the times of the meetings of shareholders
to be held in connection with the Merger, contain any untrue statement of a
material fact or omit to state any 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. The Proxy Statement
(except for such portions thereof that relate only to Park) will comply as to
form in all material respects with the requirements of the Exchange Act and the
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rules and regulations of the SEC thereunder. All information about First-Xxxx
and its Subsidiaries included in the S-4 and Proxy Statement will be deemed to
have been supplied by First-Xxxx.
(f) Compliance with Applicable Laws. First-Xxxx and its Subsidiaries
hold all permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities which are material to the operation of the businesses of
First-Xxxx and its Subsidiaries, individually and taken as a whole (the
"First-Xxxx Permits"). First-Xxxx and its Subsidiaries are in compliance with
the terms of the First-Xxxx Permits, except where the failure so to comply,
individually or in the aggregate, would not have a material adverse effect on
First-Xxxx. Except as disclosed in the First-Xxxx SEC Documents filed prior to
the date of this Agreement, the businesses of First-Xxxx and its Subsidiaries
are not being conducted in violation of any law, ordinance or regulation of any
Governmental Entity, except for possible violations which, individually or in
the aggregate, do not, and, insofar as reasonably can be foreseen, in the future
will not, have a material adverse effect on First-Xxxx or any Significant
Subsidiary, individually or in the aggregate. Except for routine examinations by
Federal or state Governmental Entities charged with the supervision or
regulation of banks or bank holding companies or engaged in the insurance of
bank deposits ("Bank Regulators"), as of the date of this Agreement, to the
knowledge of First-Xxxx, no investigation by any Governmental Entity with
respect to First-Xxxx or any of its Subsidiaries is pending or threatened, other
than, in each case, those the outcome of which, individually or in the
aggregate, as far as reasonably can be foreseen, will not have a material
adverse effect on First-Xxxx or any Significant Subsidiary, individually or in
the aggregate.
(g) Litigation. As of the date of this Agreement, except as disclosed
in the First-Xxxx SEC Documents filed prior to the date of this Agreement, there
is no suit, action or proceeding pending or, to the knowledge of First-Xxxx,
threatened, against or affecting First-Xxxx, any Subsidiary of First-Xxxx any
officer, director or employee of First-Xxxx in his or her capacity as an
officer, director or employee of First-Xxxx as to which there is a substantial
possibility of an outcome which would, individually or in the aggregate, have a
material adverse effect on First-Xxxx or any Subsidiary of First-Xxxx, nor is
there any judgment, decree, injunction, rule or order of any Governmental Entity
or arbitrator outstanding against First-Xxxx or any Subsidiary of First-Xxxx
having, or which, insofar as reasonably can be foreseen, in the future could
have, individually or in the aggregate, any such effect. First-Xxxx has
furnished to Park a true, complete and accurate list of all litigation currently
pending against First-Xxxx, any of its Subsidiaries or any officer, director or
employee of First-Xxxx in his or her capacity as an officer, director or
employee of First-Xxxx, together with the most recent audit response letters
related thereto.
(h) Taxes. First-Xxxx and each of its Subsidiaries have filed all tax
returns required to be filed by any of them and have paid (or First-Xxxx has
paid on their behalf), or have set up an adequate reserve for the payment of,
all taxes required to be paid as shown on such returns, and the most recent
financial statements contained in the First-Xxxx SEC Documents reflect an
adequate reserve for all taxes payable by First-Xxxx and its Subsidiaries
accrued through the date of such financial statements. No material deficiencies
for any taxes have been proposed,
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asserted or assessed against First-Xxxx or any of its Subsidiaries. All back-up
withholding requirements imposed on First-Xxxx or any Subsidiary of First-Xxxx
have been met. The federal income tax returns of First-Xxxx or any Subsidiary of
First-Xxxx are not currently being audited and have not been audited by the
Internal Revenue Service since 1991. For the purpose of this Agreement, the term
"tax" (including, with correlative meaning, the terms "taxes" and "taxable")
shall include, except where the context otherwise requires, all Federal, state,
local and foreign income, profits, franchise, gross receipts, payroll, sales,
employment, use, property, withholding, excise, occupancy and other taxes,
duties or assessments of any nature whatsoever, together with all interest,
penalties and additions imposed with respect to such amounts.
(i) Certain Agreements. Except as disclosed in the First-Xxxx SEC
Documents filed prior to the date of this Agreement or as disclosed in writing
to Park prior to the date hereof and except for this Agreement, as of the date
of this Agreement, neither First-Xxxx nor any of its Subsidiaries is a party to
any oral or written (i) consulting agreement not terminable on six months or
less notice involving the payment of more than $25,000 per annum, (ii) agreement
with any director, officer or employee of First-Xxxx or any Subsidiary of
First-Xxxx the benefits of which are contingent, or the terms of which are
materially altered, upon the occurrence of a transaction involving First-Xxxx or
any Subsidiary of First-Xxxx of the nature contemplated by this Agreement, (iii)
agreement with respect to any officer or employee of First-Xxxx or any
Subsidiary of First-Xxxx providing any term of employment or compensation
guarantee or (iv) agreement or plan, including any stock option plan, stock
appreciation rights plan, restricted stock plan or stock purchase plan, any of
the benefits of which will be increased or the vesting of the benefits of which
will be accelerated, by the occurrence of any of the transactions contemplated
by this Agreement or the value of any of the benefits of which will be
calculated on the basis of any of the transactions contemplated by this
Agreement.
(j) Benefit Plans. (i) With respect to each employee benefit plan
(including, without limitation, any "employee benefit plan", as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) (all the foregoing being herein called "Benefit Plans"), maintained
or contributed to by First-Xxxx or any Subsidiary of First-Xxxx (the "First-Xxxx
Benefit Plans"), First-Xxxx has made available to Park a true and correct copy
of (A) the most recent annual report (Form 5500) filed with the IRS, (B) such
First-Xxxx Benefit Plan, (C) each trust agreement relating to such First-Xxxx
Benefit Plan, (D) the most recent summary plan description for each First-Xxxx
Benefit Plan for which a summary plan description is required, (E) the most
recent actuarial report or valuation relating to a First-Xxxx Benefit Plan
subject to Title IV of ERISA and (F) the most recent determination letter issued
by the IRS with respect to any First-Xxxx Benefit Plan qualified under Section
401 (a) of the Code.
(ii) With respect to the First-Xxxx Benefit Plans, individually and in
the aggregate, no event has occurred and, to the knowledge of First-Xxxx, there
exists no condition or set of circumstances, in connection with which First-Xxxx
or any of its Subsidiaries could be subject to any liability that is reasonably
likely to have a material adverse effect on First-Xxxx (except liability for
benefits claims and funding obligations payable in the ordinary course) under
ERISA, the Code or any other applicable law.
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(iii) Each First-Xxxx Benefit Plan complies in all material respects,
and has been administered to date in material compliance, with the requirements
of ERISA and the Code, to the extent applicable. All reporting and disclosure
requirements of ERISA and the Code have been met in all respects by each such
First-Xxxx Benefit Plan, to the extent applicable. Each First-Xxxx Benefit Plan
that is an employee pension benefit plan (as defined in Section 3(2) of ERISA)
that is intended to be a qualified plan under Section 401(a) of the Code has
been amended to comply in all material respects with the current law and
First-Xxxx has obtained favorable determination letters with respect to all such
plans. Neither First-Xxxx nor any Subsidiary of First-Xxxx has any liability on
account of any accumulated funding deficiency (as defined in Section 412 of the
Code) or on account of any failure to make contributions to or pay benefits
under any such First-Xxxx Benefit Plan nor is First-Xxxx aware of any claim
pending or threatened to be brought by any party regarding such matters, other
than routine claims for benefits. No prohibited transaction has occurred with
respect to any First-Xxxx Benefit Plan that would result, directly or
indirectly, in the imposition of any excise tax under ERISA or the Code and no
reportable event under ERISA has occurred with respect to any First-Xxxx Benefit
Plan. Neither First-Xxxx nor any Subsidiary of First-Xxxx is (A) a defendant in
any lawsuit or criminal action concerning such entity's conduct as a fiduciary,
party-in-interest, or disqualified person with respect to any First-Xxxx Benefit
Plan; (B) under investigation or examination by the Department of Labor,
Internal Revenue Service, Justice Department, or Pension Benefit Guaranty
Corporation involving compliance with ERISA or the provisions of the Code
relating to employee benefit plans; and (C) required to contribute to a
"multiemployer plan" within the meaning of Section 3(37) of ERISA.
(k) Subsidiaries. Exhibit 21 to First-Xxxx'x Annual Report on Form 10-K
for the fiscal year ended December 31, 1995 includes all the Subsidiaries of
First-Xxxx as of the date of this Agreement which are Significant Subsidiaries.
First-Xxxx owns, directly or indirectly, beneficially and of record 100% of the
issued and outstanding voting securities of each such Significant Subsidiary.
Each of First-Xxxx'x Subsidiaries that is a bank (as defined in the BHC Act) is
an "insured bank" as defined in the FDIA and applicable regulations thereunder.
Except as provided in 12 U.S.C. ss.55 in the case of First-Xxxx Bank, and any
comparable provision of applicable state law in the case of First-Xxxx
Subsidiaries that are state-chartered banks, all of the capital shares of each
of the Subsidiaries held by First-Xxxx or by another First-Xxxx Subsidiary are
fully paid and nonassessable and are owned by First-Xxxx or a Subsidiary of
First-Xxxx free and clear of any claim, lien or encumbrance.
(l) Agreements with Bank Regulators. Except as disclosed in writing to
the other party prior to the date hereof, neither First-Xxxx nor any Subsidiary
of it is a party to any written agreement or memorandum of understanding with,
or a party to any commitment letter or similar undertaking to, or is subject to
any order or directive by, or is a recipient of any supervisory letter from, or
has adopted any board resolutions at the request of, any Bank Regulator which
restricts the conduct of its business, or in any manner relates to its capital
adequacy, its credit policies or its management, nor has First-Xxxx been advised
by any Bank Regulator that it is contemplating issuing or requesting (or is
considering the appropriateness of issuing or requesting) any such order,
decree, agreement, memorandum of understanding, supervisory letter, commitment
letter or similar submission, or any such board resolutions.
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(m) Absence of Certain Changes or Events. Except as disclosed in the
First-Xxxx SEC Documents filed prior to the date of this Agreement, since June
30, 1995, First-Xxxx and its Subsidiaries have not incurred any material
liability, except in the ordinary course of their businesses consistent with
their past practices, nor has there been any change, or any event involving a
prospective change, in the business, financial condition or results of
operations of First-Xxxx or any of its Subsidiaries which has had, or is
reasonably likely to have, a material adverse effect on First-Xxxx, and
First-Xxxx and its Subsidiaries have conducted their respective businesses in
the ordinary course consistent with their past practices.
(n) Certain Provisions of Articles of Incorporation Not Applicable. The
provisions of Article Twelfth of First-Xxxx'x Articles of Incorporation do not
and will not apply to this Agreement, the Merger or the transactions
contemplated hereby.
(o) Vote Required. The affirmative vote of the holders of two-thirds of
the outstanding First-Xxxx Common Shares is the only vote of the holders of any
First-Xxxx capital shares necessary to approve this Agreement and the
transactions contemplated hereby (assuming for purposes of this representation
the accuracy of the representations contained in Section 3.2(r), without giving
effect to the knowledge qualification thereof).
(p) Accounting Matters. Neither First-Xxxx nor, to its best knowledge,
any of its affiliates, has through the date hereof taken 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".
(q) Properties. Except as disclosed in the First-Xxxx SEC Documents
filed prior to the date of this Agreement or in writing to the other party prior
to the date hereof, First-Xxxx or one of its Subsidiaries (i) has good and
marketable title to all the properties and assets reflected in the latest
audited balance sheet included in such First-Xxxx SEC Documents as being owned
by First-Xxxx or one of its Subsidiaries or acquired after the date thereof
which are material to First-Xxxx'x business on a consolidated basis (except
properties sold or otherwise disposed of since the date thereof in the ordinary
course of business), free and clear of all claims, liens, charges, security
interests or encumbrances of any nature whatsoever except (A) statutory liens
securing payments not yet due, (B) liens on assets of Subsidiaries of First-Xxxx
which are incurred in the ordinary course of their banking business and (C) such
imperfections or irregularities of title, claims, liens, charges, security
interests, use restrictions or encumbrances as do not materially affect the use
of the properties or assets subject thereto or affected thereby or otherwise
materially impair business operations at such properties and (ii) is the lessee
of all leasehold estates reflected in the latest audited financial statements
included in such First-Xxxx SEC Documents or acquired after the date thereof
which are material to its business on a consolidated basis (except for leases
that have expired by their terms since the date thereof) and is in possession of
the properties purported to be leased thereunder, and each such lease is valid
without default thereunder by the lessee or, to First-Xxxx'x knowledge, as of
the date hereof, the lessor. First-Xxxx has furnished true and correct copies of
all deeds and leases relating to the real property owned or leased by First-Xxxx
or any Subsidiary of First-Xxxx.
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(r) Ownership of Park Common Shares. As of the date hereof, neither
First-Xxxx nor, to its best knowledge, any of its affiliates or associates (as
such terms are defined under the Exchange Act), (i) beneficially owns, directly
or indirectly, or (ii) is party to any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of, in each case,
capital shares of Park, which in the aggregate represent 10% or more of the
outstanding Park Common Shares (other than trust account shares).
(s) Brokers or Finders. No agent, broker, investment banker, financial
advisor or other firm or person is or will be entitled to any brokers or finders
fee or any other similar commission or fee in connection with any of the
transactions contemplated by this Agreement, except Xxxxxxxxx Associates Inc.
("Xxxxxxxxx"), whose fees and expenses will be paid by First-Xxxx in accordance
with First-Xxxx'x agreements with such firm (copies of which agreement have been
delivered by First-Xxxx to Park prior to the date of this Agreement), and
First-Xxxx agrees to indemnify Park and to hold Park harmless from and against
any and all claims, liabilities or obligations with respect to any other fees,
commissions or expenses asserted by any such person on the basis of any act or
statement alleged to have been made by First-Xxxx or its affiliate.
(t) Labor Matters. Neither First-Xxxx nor any Subsidiary of First-Xxxx
is a party to any collective bargaining or other union agreement with any of its
employees, or is involved in any labor dispute.
(u) Environmental Matters. To the best knowledge of First-Xxxx,
First-Xxxx and the Subsidiaries of First-Xxxx are and have been at all times in
substantial compliance with all applicable federal and state environmental laws
other than such non-compliance, where the failure to so comply would not have a
material adverse effect on First Xxxx or any Subsidiary of First Xxxx. To the
best knowledge of First-Xxxx, no investigations, inquiries, orders, hearings or
other proceedings by or before any court or governmental agency are pending or,
to the best knowledge of First-Xxxx, threatened in connection with any alleged
violation of any applicable environmental law by First-Xxxx or any Subsidiary of
First-Xxxx which could have a material adverse effect on First-Xxxx or any
subsidiary of First Xxxx. To the best knowledge of First-Xxxx, neither
First-Xxxx nor any Subsidiary of First-Xxxx has caused or permitted any
substances or materials which are classified or considered to be hazardous or
toxic under any applicable environmental law to be integrated into any real
property owned or leased by them 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 such
real property.
(v) CRA Compliance. Neither First-Xxxx nor any Subsidiaries of
First-Xxxx have received any notice of non-compliance with the applicable
provisions of the Community Reinvestment Act of 1977, as amended ("CRA"), and
the regulations promulgated thereunder, and First-Xxxx Bank and Farmers have
received a CRA rating of satisfactory or better from the Office of the
Comptroller of the Currency and the Federal Deposit Insurance Corporation,
respectively. First-Xxxx knows of no fact or circumstance or set of facts or
circumstances which would cause First-Xxxx or any Subsidiary of First-Xxxx to
receive any notice of non-compliance with such provisions or to cause the CRA
rating of any such entity to fall below satisfactory.
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(w) Capital Requirements. First-Xxxx and the Subsidiaries of First-Xxxx
which are banks are in compliance with all currently applicable capital
requirements and guidelines prescribed by all appropriate Bank Regulators.
(x) Loan Losses. Since December 31, 1995, neither First-Xxxx Bank nor
Farmers have incurred any unusual or extraordinary loan losses. The allowance
for loan losses reflected on the financial statements of First-Xxxx Bank and
Farmers have been determined in accordance with generally accepted accounting
principles and in accordance with all applicable regulations of all Bank
Regulators and are adequate in all respects. First-Xxxx has considered all
potential losses known to First-Xxxx to the best of its knowledge in
establishing the current allowance for loan losses for First-Xxxx Bank and
Farmers, other than such losses that if incurred would not have a material
adverse effect on First-Xxxx or any Subsidiary of First-Xxxx.
3.2. Representations and Warranties of Park. Park represents and
warrants to First-Xxxx as follows:
(a) Organization, Standing and Power. Park is both a bank holding
company registered under the BHC Act and a savings and loan holding company
registered under the Home Owners' Loan Act of 1933, as amended. The Park
National Bank, Newark, Ohio is a wholly-owned Subsidiary of Park and a national
banking association organized under the laws of the United States. Each of Park
and its Significant Subsidiaries is a bank or corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation or organization, has all requisite power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted, and is duly qualified and in good standing to do business in each
jurisdiction in which the nature of its business or the ownership or leasing of
its properties makes such qualification necessary other than in such
jurisdictions where the failure so to qualify would not, either individually or
in the aggregate, have a material adverse effect on Park. The Articles of
Incorporation and Regulations of Park, copies of which were previously furnished
to First-Xxxx, are true, complete and correct copies of such documents as in
effect on the date of this Agreement.
(b) Capital Structure. (i) As of the date hereof, the authorized
capital shares of Park consists of 20,000,000 Park Common Shares. At the close
of business on September 30, 1996, 7,222,610 Park Common Shares were
outstanding, 200,000 Park Common Shares were reserved for issuance upon the
exercise of stock options, out of which 60,000 of such Park Common Shares are
subject to currently outstanding stock options (which options reload at the time
they are exercised), and 91,613 Park Common Shares were held by Park in its
treasury or by its Subsidiaries (other than trust account shares or DPC shares).
All outstanding Park Common Shares have been duly authorized and validly issued
and are fully paid and non-assessable. The Park Common Shares to be issued
pursuant to or as specifically contemplated by this Agreement (including without
limitation as contemplated by Section 5.8 hereof) will be, if and when issued in
accordance with the terms hereof or as contemplated hereby, and subject to
approval by the shareholders of Park of this Agreement, duly authorized, validly
issued, fully paid and non-assessable and not subject to preemptive rights.
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(ii) No Voting Debt of Park is issued or outstanding.
(iii) As of the date of this Agreement, except for this Agreement and
the Park National Corporation 1995 Incentive Stock Option Plan (the "Park Option
Plan") or dividend reinvestment and stock purchase plan (such plans
collectively, the "Park Stock Plans") and except as disclosed to First-Xxxx
prior to the date of this Agreement, there are no options, warrants, calls,
rights, commitments or agreements of any character to which Park or any
Subsidiary of Park is a party or by which it is bound obligating Park or any
Subsidiary of Park to issue, deliver or sell, or cause to be issued, delivered
or sold, additional capital shares or any Voting Debt of Park or of any
Subsidiary of Park or obligating Park or any Subsidiary of Park to grant, extend
or enter into any such option, warrant, call, right, commitment or agreement.
True and correct copies of the Park Stock Plans as in effect on the date hereof
have been provided to First-Xxxx.
(iv) Since September 30, 1996, Park has not (A) issued or permitted to
be issued any capital shares, or securities exercisable for or convertible into
capital shares, of Park or any of its Subsidiaries, other than pursuant to and
as required by the terms of the Park Stock Plans (or in the ordinary course of
business as permitted by such plans and consistent with past practice); or (B)
declared, set aside, made or paid to the shareholders of Park dividends or other
distributions on the outstanding capital shares of Park, other than regular
quarterly cash dividends on the Park Common Shares at a rate not in excess of
the regular quarterly cash dividends most recently declared by Park prior to the
date of this Agreement.
(c) Authority. (i) Park has all requisite corporate power and authority
to enter into this Agreement and, subject to approval by the requisite vote of
the holders of Park Common Shares of this Agreement, to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Park, subject in the
case of the consummation of the Merger contemplated hereby to the approval of
this Agreement by the holders of Park Common Shares. This Agreement has been
duly executed and delivered by Park and constitutes a valid and binding
obligation of Park, enforceable in accordance with its terms.
(ii) The execution and delivery of this Agreement does not or will not,
as the case may be, and subject to the approval of this Agreement by the holders
of Park Common Shares, the consummation of the transactions contemplated hereby
will not, result in any Violation pursuant to any provision of the Articles of
Incorporation or Regulations of Park or any Subsidiary of Park or, except as
disclosed in writing to the other party prior to the date hereof and subject to
obtaining or making the consents, approvals, orders, authorizations,
registrations, declarations and filings referred to in paragraph (iii) below,
result in any Violation of any loan or credit agreement, note, mortgage,
indenture, lease, Benefit Plan or other agreement, obligation, instrument,
permit, concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Park or any Subsidiary of Park or
their respective properties or assets which Violation, individually or in the
aggregate, would have a material adverse effect on Park.
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(iii) No consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Entity is required by or with
respect to Park, or any Subsidiary of Park in connection with the execution and
delivery of this Agreement by Park or the consummation by Park of the
transactions contemplated hereby, the failure to obtain which would have a
material adverse effect on Park, except for (A) the filing of applications and
notices with the Federal Reserve under the BHC Act, the FRA and the FDIA and
approval of same, (B) the filing with the SEC of the Proxy Statement, the S-4
and such reports under Sections 12, 13(a), 13(d), 13(g) and 16(a) of the
Exchange Act as may be required in connection with this Agreement and the
transactions contemplated hereby and the obtaining from the SEC of such orders
as may be required in connection therewith, (C) such filings and approvals as
are required to be made or obtained under the securities or blue sky laws of
various states in connection with the transactions contemplated by this
Agreement, (D) the filing of the Certificate of Merger with the Secretary of
State of the State of Ohio, (E) any State Banking Approvals, and (F) any
consents, authorizations, approvals, filings or exemptions pursuant to the rules
of AMEX.
(d) SEC Documents. Park has furnished to First-Xxxx a true and complete
copy of each report, schedule, registration statement and definitive proxy
statement filed by Park with the SEC since December 31, 1994 (as such documents
have since the time of their filing been amended, the "Park SEC Documents"),
which are all the documents (other than preliminary material) that Park was
required to file with the SEC since such date. As of their respective dates of
filing with the SEC, the Park SEC Documents complied in all material respects
with the requirements of the Securities Act or the Exchange Act, as the case may
be, and the rules and regulations of the SEC thereunder applicable to such Park
SEC Documents, and did not contain any untrue statement of a material fact or
omit to state a 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. The financial statements of Park included in the Park SEC
Documents complied as to form, as of their respective dates of filing with the
SEC, in all material respects with applicable accounting requirements and with
the published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis during the periods involved (except as may be indicated in
the notes thereto or, in the case of the unaudited statements, as permitted by
Form 10-Q of the SEC) and fairly present in all material respects the
consolidated financial position of Park and its consolidated Subsidiaries as at
the dates thereof and the consolidated results of operations, changes in
stockholders' equity and cash flows of such companies for the periods then
ended. All material agreements, contracts and other documents required to be
filed as exhibits to any of the Park SEC Documents have been so filed.
(e) Information Supplied. None of the information supplied or to be
supplied by Park for inclusion or incorporation by reference in (i) the S-4
will, at the time the S-4 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 will, at the date of mailing to shareholders and at the
times of the meetings of shareholders to be held in connection with the Merger,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
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statements therein, in light of the circumstances under which they were made,
not misleading. The Proxy Statement (except for such portions thereof that
relate only to First-Xxxx) will comply as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations of the SEC
thereunder, and the S-4 (except for such portions thereof that relate only to
First-Xxxx) will comply as to form in all material respects with the
requirements of the Securities Act and the rules and regulations of the SEC
thereunder. All information about Park and its Subsidiaries included in the S-4
and Proxy Statement will be deemed to have been supplied by Park.
(f) Compliance with Applicable Laws. Park and its Subsidiaries hold all
permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities which are material to the operation of the businesses of
Park and its Subsidiaries, taken as a whole (the "Park Permits"). Park and its
Subsidiaries are in compliance with the terms of the Park Permits and all
applicable laws and regulations, except where the failure so to comply,
individually or in the aggregate, would not have a material adverse effect on
Park. Except as disclosed in the Park SEC Documents filed prior to the date
hereof, the businesses of Park and its Subsidiaries are not being conducted in
violation of any law, ordinance or regulation of any Governmental Entity, except
for possible violations which, individually or in the aggregate, do not, and,
insofar as reasonably can be foreseen, in the future will not, have a material
adverse effect on Park. Except for routine examinations by Bank Regulators, as
of the date of this Agreement, to the knowledge of Park, no investigation by any
Governmental Entity with respect to Park or any of its Subsidiaries is pending
or threatened, other than, in each case, those the outcome of which,
individually or in the aggregate, as far as reasonably can be foreseen, will not
have a material adverse effect on Park.
(g) Litigation. As of the date of this Agreement, except as disclosed
in the Park SEC Documents filed prior to the date of this Agreement, there is no
suit, action or proceeding pending or, to the knowledge of Park, threatened,
against or affecting Park or any Subsidiary of Park as to which there is a
substantial possibility of an outcome which would, individually or in the
aggregate, have a material adverse effect on Park or any Subsidiary of Park, nor
is there any judgment, decree, injunction, rule or order of any Governmental
Entity or arbitrator outstanding against Park or any Subsidiary of Park having,
or which, insofar as reasonably can be foreseen, in the future could have,
individually or in the aggregate, any such effect.
(h) Taxes. Park and each of its Subsidiaries have filed all tax returns
required to be filed by any of them and have paid (or Park has paid on their
behalf), or have set up an adequate reserve for the payment of, all taxes
required to be paid as shown on such returns, and the most recent financial
statements contained in the Park SEC Documents reflect an adequate reserve for
all taxes payable by Park and its Subsidiaries accrued through the date of such
financial statements. No material deficiencies for any taxes have been proposed,
asserted or assessed against Park or any of its Subsidiaries that are not
adequately reserved for.
(i) Certain Agreements. Except as disclosed in the Park SEC Documents
filed prior to the date of this Agreement, or as disclosed in writing to the
other party prior to the date of this Agreement, and except for this Agreement,
as of the date of this Agreement, neither Park nor
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any of its Subsidiaries is a party to any oral or written (i) consulting
agreement not terminable on six months or less notice involving the payment of
more than $100,000 per annum, (ii) agreement with any director, officer or other
key employee of Park or any Subsidiary of Park the benefits of which are
contingent, or the terms of which are materially altered, upon the occurrence of
a transaction involving Park or any Subsidiary of Park of the nature
contemplated by this Agreement and which provides for the payment of in excess
of $100,000, (iii) agreement with respect to any executive officer of Park or
any Subsidiary of Park providing any term of employment or compensation
guarantee extending for a period longer than three years and for the payment of
in excess of $100,000 per annum or (iv) agreement or plan, including any stock
option plan, stock appreciation rights plan, restricted stock plan or stock
purchase plan, any of the benefits of which will be increased, or the vesting of
the benefits of which will be accelerated, by the occurrence of any of the
transactions contemplated by this Agreement or the value of any of the benefits
of which will be calculated on the basis of any of the transactions contemplated
by this Agreement.
(j) Benefit Plans. (i) With respect to each Benefit Plan maintained or
contributed to by Park or The Park National Bank, Newark, Ohio (the "Park
Benefit Plans"), Park has made available to First-Xxxx a true and correct copy
of (A) the most recent annual report (Form 5500) filed with the IRS, (B) such
Park Benefit Plan, (C) each trust agreement relating to such Park Benefit Plan,
(D) the most recent summary plan description for each Park Benefit Plan for
which a summary plan description is required (E) the most recent actuarial
report or valuation relating to a Park Benefit Plan subject to Title IV of ERISA
and (F) the most recent determination letter issued by the IRS with respect to
any Park Benefit Plan qualified under Section 401 (a) of the Code.
(ii) With respect to the Park Benefit Plans, individually and in the
aggregate, no event has occurred and, to the knowledge of Park, there exists no
condition or set of circumstances in connection with which Park or any of its
Subsidiaries could be subject to any liability that is reasonably likely to have
a material adverse effect upon Park (except liability for benefits claims and
funding obligations payable in the ordinary course) under ERISA, the Code or any
other applicable law.
(iii) Each Park Benefit Plan complies in all material respects, and has
been administered to date in material compliance, with the requirements of ERISA
and the Code, to the extent applicable. All reporting and disclosure
requirements of ERISA and the Code have been met in all respects by each such
Park Benefit Plan, to the extent applicable. Each Park Benefit Plan that is an
employee pension benefit plan (as defined in Section 3(2) of ERISA) that is
intended to be a qualified plan under Section 401(a) of the Code has been
amended to comply in all material respects with the current law and Park has
obtained favorable determination letters with respect to all such plans. Neither
Park nor any Subsidiary of Park has any liability on account of any accumulated
funding deficiency (as defined in Section 412 of the Code) or on account of any
failure to make contributions to or pay benefits under any such Park Benefit
Plan nor is Park aware of any claim pending or threatened to be brought by any
party regarding such matters other than routine claims for benefits. No
prohibited transaction has occurred with respect to any Park Benefit Plan that
would result, directly or indirectly, in the imposition of any excise tax
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under ERISA or the Code and no reportable event under ERISA has occurred with
respect to any Park Benefit Plan. Neither Park nor any Subsidiary of Park is (A)
a defendant in any lawsuit or criminal action concerning such entity's conduct
as a fiduciary, party-in-interest, or disqualified person with respect to any
Park Benefit Plan; (B) under investigation or examination by the Department of
Labor, Internal Revenue Service, Justice Department, or Pension Benefit Guaranty
Corporation involving compliance with ERISA or the provisions of the Code
relating to employee benefit plans; and (C) required to contribute to a
"multiemployer plan" within the meaning of Section 3(37) of ERISA.
(k) Subsidiaries. Exhibit 21 to Park's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995, includes all the Subsidiaries of Park
as of the date of this Agreement which are Significant Subsidiaries. Park owns,
directly or indirectly, beneficially and of record 100% of the issued and
outstanding voting securities of each such significant Subsidiary. Each of
Park's Subsidiaries that is a bank (as defined in the BHC Act) is an "insured
bank" as defined in the FDIA and applicable regulations thereunder. Except as
provided in 12 U.S.C. Section 55 in the case of Subsidiaries of Park that are
national banks and any comparable provision of applicable state law in the case
of Subsidiaries of Park that are state-chartered banks, all of the capital
shares of each of the Subsidiaries held by Park or by another Subsidiary of Park
are fully paid and nonassessable and are owned by Park or a Subsidiary of Park
free and clear of any claim, lien or encumbrance.
(l) Agreements with Bank Regulators. Neither Park nor any Subsidiary of
it is a party to any written agreement or memorandum of understanding with, or a
party to any commitment letter or similar undertaking to, or is subject to any
order or directive by, or is a recipient of any supervisory letter from, or has
adopted any board resolutions at the request of, any Bank Regulator which
restricts the conduct of its business, or in any manner relates to its capital
adequacy, its credit policies or its management, nor has Park been advised by
any Bank Regulator that it is contemplating issuing or requesting (or is
considering the appropriateness of issuing or requesting) any such order,
decree, agreement, memorandum of understanding, supervisory letter, commitment
letter or similar submission, or any such board resolutions.
(m) Absence of Certain Changes or Events. Except as disclosed in the
Park SEC Documents filed prior to the date of this Agreement, since June 30,
1995, Park and its Subsidiaries have not incurred any material liability, except
in the ordinary course of their business consistent with their past practices,
nor has there been any change, or any event involving a prospective change, in
the business, financial condition or results of operations of Park or any of its
Subsidiaries which has had, or is reasonably likely to have, a material adverse
effect on Park, and Park and its Subsidiaries have conducted their respective
businesses in the ordinary course consistent with their past practices.
(n) Certain Provisions of Articles of Incorporation Not Applicable. The
provisions of Articles Sixth and Eighth of the Articles of Incorporation do not
and will not apply or an exemption for the application of these provision will
apply to this Agreement, the Merger or the transactions contemplated hereby.
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(o) Vote Required. The affirmative vote of the holders of two-thirds of
the outstanding Park Common Shares is the only vote of the holders of any Park
capital shares necessary to approve the this Agreement and the transactions
contemplated hereby (assuming for the purposes of this representation the
accuracy of the representations contained in Section 3.1(r) without giving
effect to the knowledge qualification thereof).
(p) Accounting Matters. Neither Park nor, to its best knowledge, any of
its affiliates, has through the date of this Agreement taken 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".
(q) Properties. Except as disclosed in the Park SEC Documents filed
prior to the date of this Agreement or in writing to the other party prior to
the date hereof, Park or one of its Subsidiaries (i) has good and marketable
title to all the properties and assets reflected in the latest audited balance
sheet included in such Park SEC Documents as being owned by Park or one of its
Subsidiaries or acquired after the date thereof which are material to Park's
business on a consolidated basis (except properties sold or otherwise disposed
of since the date thereof in the ordinary course of business), free and clear of
all claims, liens, charges, security interests or encumbrances of any nature
whatsoever except (A) statutory liens securing payments not yet due, (B) liens
on assets of Subsidiaries of Park which are banks incurred in the ordinary
course of their banking business and (C) such imperfections or irregularities of
title, claims, liens, charges, security interests, use restrictions or
encumbrances as do not materially affect the use of the properties or assets
subject thereto or affected thereby or otherwise materially impair business
operations at such properties and (ii) is the lessee of all leasehold estates
reflected in the latest audited financial statements included in such Park SEC
Documents or acquired after the date thereof which are material to its business
on a consolidated basis (except for leases that have expired by their terms
since the date thereof) and is in possession of the properties purported to be
leased thereunder and each such lease is valid without default thereunder by the
lessee or, to Park's knowledge, as of the date hereof, the lessor.
(r) Ownership of First-Xxxx Common Shares. As of the date hereof,
neither Park nor, to its best knowledge, any of its affiliates or associates (as
such terms are defined under the Exchange Act), (i) beneficially owns, directly
or indirectly, or (ii) is party to any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of, in each case,
capital shares of First-Xxxx, which in the aggregate represent 10% or more of
the outstanding First-Xxxx Common Shares (other than trust account shares).
(s) Brokers or Finders. No agent, broker, investment banker, financial
advisor or other firm or person is or will be entitled to any broker's or
finder's fee or any other similar commission or fee in connection with any of
the transactions contemplated by this Agreement, except XxXxxxxx & Company
Investments, Inc. ("McDonald"), whose fees and expenses will be paid by Park in
accordance with an agreement to be entered into between Park and McDonald (a
copy of which agreement will be delivered by Park to First-Xxxx immediately upon
its execution) and Park agrees to indemnify First-Xxxx and to hold First-Xxxx
harmless from and against any and all claims, liabilities or obligations with
respect to any fees, commissions or
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expenses asserted by any such person on the basis of any act or statement
alleged to have been made by Park or its affiliates in connection with this
transaction.
(t) Labor Matters. Neither Park nor any Subsidiary of Park is a party
to any collective bargaining or other union agreement with any of its employees,
or is involved in any labor dispute.
(u) Environmental Matters. To the best knowledge of Park, Park and the
Subsidiaries of Park are and have been at all times in substantial compliance
with all applicable federal and state environmental laws, other than such
non-compliance where to the failure to so comply would not have a material
adverse effect on Park or any Subsidiary of Park. To the best knowledge of Park,
no investigations, inquiries, orders, hearings or other proceedings by or before
any court or governmental agency are pending or, to the best knowledge of Park,
threatened in connection with any alleged violation of any applicable
environmental law by Park or any Subsidiary of Park, which would have a material
adverse effect on Park or any Subsidiary of Park. To the best knowledge of Park,
neither Park nor any Subsidiary of Park has caused or permitted any substances
or materials which are classified or considered to be hazardous or toxic under
any applicable environmental law to be integrated into any real property owned
or leased by them 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 such real property.
(v) CRA Compliance. Neither Park nor any Subsidiary of Park have
received a notice of non-compliance with the applicable provisions of the CRA,
and the regulations promulgated thereunder, and The Park National Bank, Newark,
Ohio, has received a CRA rating of satisfactory or better from the Office of the
Comptroller of the Currency. Park knows of no fact or circumstance or set of
facts or circumstances which would cause Park or any Subsidiary of Park to
receive any notice of non-compliance with such provisions or to cause the CRA
rating of any such entity to fall below satisfactory.
(w) Capital Requirements. Park and the Subsidiaries of Park which are
banks are in compliance with all currently applicable capital requirements and
guidelines prescribed by all appropriate Bank Regulators.
(x) Loan Losses. Since December 31, 0000, Xxx Xxxx Xxxxxxxx Xxxx,
Xxxxxx, Xxxx, has not incurred any unusual or extraordinary loan losses. The
allowance for loan losses reflected on the financial statements of The Park
National Bank, Newark, Ohio, have been determined in accordance with generally
accepted accounting principles and in accordance with all applicable regulations
of all Bank Regulators and are adequate in all respects. Park has considered all
potential losses known to Park to the best of its knowledge in establishing the
current allowance for loan losses for The Park National Bank, Newark, Ohio,
other than such losses that if incurred would not have a material adverse effect
on Park or any Subsidiary of Park.
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ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS
4.1. Covenants of First-Xxxx and Park. During the period from the date
of this Agreement and continuing until the Effective Time, First-Xxxx and Park
each agrees as to itself and its Subsidiaries that (except as expressly
contemplated or permitted by this Agreement or to the extent that the other
party shall otherwise consent in writing):
(a) Ordinary Course. Such party and its Subsidiaries shall carry on
their respective businesses in the usual, regular and ordinary course in
substantially the same manner as heretofore conducted and use all reasonable
efforts to preserve intact their present business organizations, maintain their
rights and franchises and preserve their relationships with customers, suppliers
and others having business dealings with them to the end that their goodwill and
ongoing businesses shall not be impaired in any material respect at the
Effective Time. No party shall, or shall permit any of its Subsidiaries to, (i)
enter into any new material line of business, (ii) change its or its
Subsidiaries' lending, investment, liability management and other material
banking policies in any respect which is material to such party, except as
required by law or by policies imposed by a Bank Regulator, or (iii) incur or
commit to any capital expenditures or any obligations or liabilities in
connection therewith other than capital expenditures and obligations or
liabilities incurred or committed to in the ordinary course of business
consistent with past practice.
(b) Dividends; Changes in Shares. No party shall, or shall permit any
of its Subsidiaries to, or shall propose to, (i) declare or pay any dividends on
or make other distributions in respect of any of its capital shares, except (A)
as provided in Section 5.12, and (B) for dividends by a wholly-owned Subsidiary
of such party, (ii) split, combine or reclassify any of its capital shares or
issue or authorize or propose the issuance of any other securities in respect
of, in lieu of or in substitution for its capital shares, except, in the case of
Park, the issuance of up to 2,672 Park Common Shares in accordance with its
prior written disclosure. In addition, neither party shall repurchase, redeem or
otherwise acquire, or permit any Subsidiary to purchase or otherwise acquire
(other than as agent for shareholders reinvesting dividends pursuant to a
dividend reinvestment plan in accordance with the terms thereof as in effect on
the date of this Agreement, and except for the acquisition of trust account
shares and DPC shares), any of its capital shares or any securities convertible
into or exercisable for any of its capital shares; provided, however, that Park
shall be entitled to take such action so long as it is in a manner which will
not violate Section 4.1(l).
(c) Issuance of Securities. No party shall, or shall permit any of its
Subsidiaries to, issue, deliver or sell, or authorize or propose the issuance,
delivery or sale of, any of its capital shares of any class, any Voting Debt or
any securities convertible into or exercisable for, or any rights, warrants or
options to acquire, any such shares or Voting Debt, or enter into any agreement
with respect to any of the foregoing, other than (i) the issuance of Park Common
Shares (A) pursuant to, or pursuant to the exercise of stock options issued
under, the Park Stock Plans in the ordinary course of business and consistent
with past practices and in accordance
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with the terms of the Park Stock Plan as in effect on the date of this
Agreement, or (B) in an amount equal to up to 2,672 Park Common Shares in
accordance with Park's prior written disclosure (ii) the issuance of First-Xxxx
Common Shares pursuant to the exercise of outstanding stock options issued under
the First-Xxxx Stock Plans (it being understood and agreed that First-Xxxx will
not grant any additional options under such plans after the date of this
Agreement), and (iii) issuances by a wholly-owned Subsidiary of its capital
shares to its parent.
(d) Governing Documents. No party shall amend or propose to amend the
Articles of Incorporation or Regulations of such party, except as may be
contemplated by Section 1.3(a)(iii) and (iv).
(e) Exclusivity. No party shall, or shall permit any of its
Subsidiaries, to solicit or encourage the submission of any proposal which
constitutes a Takeover Proposal (as defined below); provided, however, that each
party, its Subsidiaries, and their directors and officers shall remain free to
participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate in any
other manner any effort or attempt to do or seek any of the foregoing to the
extent their fiduciary duties may require. As used in this Agreement, "Takeover
Proposal" shall mean any tender or exchange offer, proposal for a merger,
consolidation or other business combination involving Park or First-Xxxx or any
Significant Subsidiary of Park or First-Xxxx or any proposal or offer to acquire
in any manner 20% or more of the outstanding shares of any class of voting
securities, or 15% or more of the consolidated assets, of Park or First-Xxxx or
any Significant Subsidiary of Park or First-Xxxx, other than the transactions
contemplated by this Agreement. If a party receives an unsolicited Takeover
Proposal, it shall notify the other party as soon as possible of the receipt of
such Takeover Proposal.
(f) No Acquisitions. Other than acquisitions disclosed in writing to
Park prior to the date of this Agreement, First-Xxxx shall not, and shall not
permit any of its Subsidiaries to, acquire or agree to acquire by merging or
consolidating with, or by purchasing a substantial equity interest in or a
substantial portion of the assets of, or by any other manner, any business or
any corporation, partnership, association or other business organization or
division thereof or otherwise acquire or agree to acquire any assets, in each
case which are material, individually or in the aggregate, to First-Xxxx;
provided, however, that the foregoing shall not prohibit (i) foreclosures and
other debt-previously-contracted acquisitions in the ordinary course of
business, or (ii) acquisitions of control by a banking Subsidiary in its
fiduciary capacity.
(g) No Dispositions. Other than dispositions referred to in First-Xxxx
SEC Documents filed prior to the date of this Agreement or as previously
disclosed in writing to Park, First-Xxxx shall not, and shall not permit any of
its Subsidiaries to, sell, lease, encumber or otherwise dispose of, or agree to
sell, lease, encumber or otherwise dispose of, any of its assets (including
capital shares of Subsidiaries), which are material, individually or in the
aggregate, to First-Xxxx.
(h) Indebtedness. First-Xxxx shall not, and shall not permit any of its
Subsidiaries to, incur any long-term indebtedness for borrowed money or
guarantee any such long-term
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indebtedness or issue or sell any long-term debt securities or warrants or
rights to acquire any long-term debt securities of First-Xxxx or any of its
Subsidiaries or guarantee any long-term debt securities of others other than (i)
in replacement for existing or maturing debt, (ii) indebtedness of any
Subsidiary of First-Xxxx to First-Xxxx or another Subsidiary of First-Xxxx or
(iii) in the ordinary course of business consistent with prior practice.
(i) Other Actions. No party shall, or shall permit any of its
Subsidiaries to, intentionally take any action that would, or reasonably might
be expected to, result in any of its representations and warranties set forth in
this Agreement being or becoming untrue, subject to such exceptions as do not
have, and would not reasonably be expected to have, individually or in the
aggregate, a material adverse effect on such party or on the Surviving
Corporation following the Effective Time, or in any of the conditions to the
Merger set forth in Article VI not being satisfied or (unless such action is
required by applicable law or sound banking practice) which would adversely
affect the ability of any of them to obtain any of the Requisite Regulatory
Approvals without imposition of a condition or restriction of the type referred
to in Section 6.1(g).
(j) Advice of Changes; Government Filings. Each party shall confer on a
regular and frequent basis with the other, report on operational matters and
operating results and promptly advise the other orally and in writing of any
change or event having, or which, insofar as can reasonably be foreseen, could
have, a material adverse effect on such party or which would cause or constitute
a material breach of any of the representations, warranties or covenants of such
party contained herein. In addition, First-Xxxx shall consult with Park
regarding any change in the lending or reserve policies applicable to First-Xxxx
or any First-Xxxx Subsidiary, to the extent permitted by law. Park and
First-Xxxx shall file all reports required to be filed by each of them with the
SEC between the date of this Agreement and the Effective Time and shall deliver
to the other party copies of all such reports promptly after the same are filed.
Park, First-Xxxx and each Subsidiary of Park or First-Xxxx that is a bank shall
file all call reports with the appropriate Bank Regulators and all other
reports, applications and other documents required to be filed with the
applicable Governmental Entities between the date hereof and the Effective Time
and shall make available to the other party copies of all such reports promptly
after the same are filed. Each of Park and First-Xxxx 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 all the information relating to the other party,
and any of their respective Subsidiaries, which appear in any filing made with,
or written materials submitted to, any third party or any Governmental Entity 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 to the extent practicable
it will consult with the other party hereto with respect to the obtaining of all
permits, consents, approvals and authorizations of all third parties and
Governmental Entities necessary or advisable to consummate the transactions
contemplated by this Agreement and each party will keep the other party apprised
of the status of matters relating to completion of the transactions contemplated
hereby.
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(k) Accounting Methods. Except as disclosed in Park SEC Documents or
First-Xxxx SEC Documents (as the case may be) filed prior to the date of this
Agreement, neither Park nor First-Xxxx shall change its methods of accounting in
effect at December 31, 1995, except as required by changes in generally accepted
accounting principles as concurred in by such party's independent auditors.
Neither Park nor First-Xxxx will change its fiscal year.
(l) Pooling and Tax-Free Reorganization Treatment. Neither Park nor
First-Xxxx shall, or shall permit any of its Subsidiaries to, intentionally take
or cause to be taken any action, whether before or after the Effective Time,
which would disqualify the Merger as a "pooling of interests" for accounting
purposes or as a "reorganization" within the meaning of Section 368(a) of the
Code.
(m) Compensation and Benefit Plans. During the period from the date of
this Agreement and continuing until the Effective Time, (i) each of Park and
First-Xxxx agrees as to itself and its Subsidiaries that it will not, without
the prior written consent of the other party, enter into, adopt, amend (except
for (A) such amendments as may be required by law and (B) plan documents and
restatements currently being prepared by First-Xxxx which do not increase
benefits) or terminate any Park Benefit Plan or First-Xxxx Benefit Plan, as the
case may be, or any other employee benefit plan or any agreement, arrangement,
plan or policy between such party and one or more of its directors or officers,
(ii) First-Xxxx agrees as to itself and its Subsidiaries that it will not,
without, the prior written consent of Park, (A) increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay any
benefit not required by any plan and arrangement as in effect as of the date
hereof (including, without limitation, the granting of stock options, stock
appreciation rights, restricted stock, restricted stock units or performance
units or shares), except for normal increases in the ordinary course of business
consistent with past practice that, in the aggregate, do not result in a
material increase in benefits or compensation expense to First-Xxxx, or enter
into any contract, agreement, commitment or arrangement to do any of the
foregoing or (B) enter into or renew any contract, agreement, commitment or
arrangement providing for the payment to any director, officer or employee of
First-Xxxx of compensation or benefits contingent, or the terms of which are
materially altered, upon the occurrence of any of the transactions contemplated
by this Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1. Preparation of S-4, and the Proxy Statement. Park and First-Xxxx
shall cooperate with each other in the preparation of, and shall promptly
prepare and file with the SEC, the Proxy Statement and Park shall prepare and
file with the SEC the S-4, in which the Proxy Statement will be included as a
prospectus. Each of Park and First-Xxxx shall use all reasonable efforts to have
the S-4 declared effective under the Securities Act as promptly as practicable
after such filing. Park shall also take any action (other than qualifying to do
business in any jurisdiction in which it is now not so qualified) required to be
taken under any applicable state
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securities laws in connection with the issuance of Park Common Shares in
the Merger and First-Xxxx shall furnish all information concerning First-Xxxx
and the holders of First-Xxxx Common Shares as may be reasonably requested in
connection with any such action.
5.2. Access to Information. Upon reasonable notice to the officers of
the other (Xxxxxxx X. XxXxxxxxx, C. Xxxxxx XxXxxxxx, Xxxxx X. Xxxxxx and Xxxx X.
Xxxxx for Park and Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx, Xxx Xxxxxx and Xxxxxx X.
Sant for First-Xxxx) and subject to avoidance of unreasonable disruption of the
other's business and operations, First-Xxxx and Park shall each (and shall cause
each of their respective Subsidiaries to) afford to the directors, officers,
employees and Representatives (as defined below) of the other, access, during
normal business hours during the period prior to the Effective Time, to all its
properties, books, contracts, commitments and records and, during such period,
each of First-Xxxx and Park shall (and shall cause each of their respective
Subsidiaries to) make available to the other (a) a copy of each report,
schedule, registration statement and other document filed or received by it
during such period pursuant to the requirements of Federal securities laws or
Federal or state banking laws (other than reports or documents which such party
is not permitted to disclose under applicable law) and (b) all other information
concerning its business, properties and personnel as such other party may
reasonably request; provided, however, that the directors, officers, employees
and Representatives of First-Xxxx shall not have access to Park's payroll
records. The parties will hold any such information which is nonpublic in
confidence to the extent required by, and in accordance with, the provisions of
the letters dated as of August 7, 1996 and August 7, 1996, respectively, between
First-Xxxx and Park (the "Confidentiality Agreements"). No investigation by
either Park or First-Xxxx shall affect the representations and warranties of the
other. As used in this Agreement, "Representatives" means any attorneys,
accountants, investment bankers, financial advisors or other representatives or
agents engaged or designated by First-Xxxx or Park, as the case may be.
5.3. Shareholder Meetings. First-Xxxx and Park each shall call a
meeting of its respective shareholders to be held as promptly as practicable for
the purpose of voting upon the approval of this Agreement. Subject to the next
succeeding sentence, First-Xxxx and Park will, through their respective Boards
of Directors, recommend to their respective shareholders approval of such
matters. The Board of Directors of Park or First-Xxxx, acting on behalf of Park
or First-Xxxx, respectively, may fail to make such recommendation, or withdraw,
modify or change any such recommendation, if and only if such Board of
Directors, after having consulted with and considered the written advice of
outside counsel, has determined that the making of such recommendation, or the
failure so to withdraw, modify or change such recommendation, would constitute a
breach of the fiduciary duties of such directors to their respective
shareholders under applicable law. First-Xxxx and Park shall coordinate and
cooperate with respect to the timing of such meetings and shall use their best
efforts to hold such meetings on the same day and as soon as practicable after
the date on which the S-4 becomes effective. This Section 5.3 shall not prohibit
accurate disclosure by a party that is required in any First-Xxxx SEC Document
or Park SEC Document (including the Proxy Statement and the S-4) or otherwise
under applicable law of the opinion of the Board of Directors of such party as
of the date of such SEC Document or such other required disclosure as to the
transactions contemplated hereby or as to any Takeover Proposal.
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5.4. Legal Conditions to Merger. Each of First-Xxxx and Park shall, and
shall cause its Subsidiaries to, use all reasonable efforts (i) to take, or
cause to be taken, all actions necessary to comply promptly with all legal
requirements which may be imposed on such party or its Subsidiaries with respect
to the Merger and to consummate the transactions contemplated by this Agreement
as promptly as practicable, subject to the appropriate vote of shareholders of
First-Xxxx and Park described in Section 6.1(a), and (ii) to obtain (and to
cooperate with the other party to obtain) any consent, authorization, order or
approval of, or any exemption by, any Governmental Entity or any other public or
private third party which is required to be obtained or made by such party or
any of its Subsidiaries in connection with the Merger and the transactions
contemplated by this Agreement; provided, however, that a party shall not be
obligated to take any action pursuant to the foregoing if the taking of such
action or such compliance or the obtaining of such consent, authorization,
order, approval or exemption is likely, in such party's reasonable opinion, to
result in a condition or restriction on such party or on the Surviving
Corporation having an effect of the type referred to in Section 6.1(g). Each of
First-Xxxx and Park will promptly cooperate with and furnish information to the
other in connection with any such burden suffered by, or requirement imposed
upon, any of them or any of their Subsidiaries in connection with the foregoing.
5.5. Affiliates. At least 40 days prior to the Closing Date, First-Xxxx
shall deliver to Park a letter identifying all persons who are, at the time this
Agreement is submitted for approval to the shareholders of First-Xxxx,
"affiliates" of First-Xxxx for purposes of Rule 145 under the Securities Act.
First-Xxxx shall use all reasonable efforts to cause each person named on the
letter delivered by it to deliver to the other party at least 30 days prior to
the Closing Date a written agreement, substantially in the form attached as
Exhibit 5.5.
5.6. Stock Exchange Listing. Park shall use all reasonable efforts to
cause the shares of Park Common Shares to be issued in the Merger and the Park
Common Shares to be reserved for issuance upon exercise of First-Xxxx Stock
Options (as defined below) to be approved for listing on the AMEX, subject to
official notice of issuance, prior to the Closing Date.
5.7. Employee Benefit Plans. Park agrees to coordinate the conversion
of the First-Xxxx Benefit Plans into similar plans of Park, to the extent
similar plans are maintained by Park, and to give credit under the Park Benefit
Plans for purposes of eligibility, vesting, benefit accrual and such other
purposes for which such service is taken into account or recognized, to the
extent permissible under all applicable laws to any employee of First-Xxxx or
its Subsidiaries who becomes an employee of Park or its Subsidiaries following
the consummation of the Merger.
5.8. Stock Options. (a) Prior to the Effective Time, First-Xxxx shall
take such actions as are reasonably necessary to cause (i) each outstanding
option to purchase First-Xxxx Common Shares (a "First-Xxxx Stock Option") issued
pursuant to any incentive or stock option program of First-Xxxx (the "First-Xxxx
Plan"), whether vested or unvested, to be exercised and (ii) each outstanding
stock appreciation right (a "First-Xxxx SAR") issued pursuant to the First-Xxxx
Plan, whether vested or unvested, to be exercised and "cashed out".
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(b) Upon the Effective Time, Park shall grant, in a manner and on a
basis consistent with an existing Park Stock Plan, options to purchase 25,000
Park Common Shares to such First-Xxxx employees as First-Xxxx and Park shall
jointly select (and in such proportions as First-Xxxx and Park shall jointly
determine).
5.9. Costs and Expenses. Whether or not the Merger is consummated, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby ("Costs and Expenses") shall be paid by the
party incurring such expense, except that expenses incurred in connection with
filing, printing and mailing the Proxy Statement and the S-4 shall be shared
equally by Park and First-Xxxx.
5.10. Governance. Park's Board of Directors shall take action to cause
the directors comprising the full Board of Directors of the Surviving
Corporation at the Effective Time to be the persons contemplated in Section
1.3(a). If, prior to the Effective Time, any of the persons contemplated in
Section 1.3(a) shall decline or be unable to serve as a director, Park shall
designate another person to serve in such person's stead, which person shall be
reasonably acceptable to First-Xxxx.
5.11. Indemnification. (a) From and after the Effective Time, the
Surviving Corporation shall indemnify, defend and hold harmless each person who
is now, or has been at any time prior to the date hereof or who becomes prior to
the Effective Time, an officer, director or employee of First-Xxxx or any of its
Subsidiaries (the "Indemnified Parties") against (i) all losses, claims,
damages, costs, expenses, liabilities or judgments or amounts that are paid in
settlement of or in connection with any claim, action, suit, proceeding or
investigation based in whole or in part on or arising in whole or in part out of
the fact that such person is or was a director, officer or employee of
First-Xxxx or any Subsidiary of First-Xxxx, whether pertaining to any matter
existing or occurring at or prior to the Effective Time and whether asserted or
claimed prior to, or at or after, the Effective Time ("Indemnified Liabilities")
and (ii) all Indemnified Liabilities based in whole or in part on, or arising in
whole or in part out of, or pertaining to this Agreement or the transactions
contemplated hereby, in each case to the full extent First-Xxxx would have been
permitted under Ohio law and its Articles of Incorporation and Regulations to
indemnify such person (and the Surviving Corporation shall pay expenses in
advance of the final disposition of any such action or proceeding to each
Indemnified Party to the full extent permitted by law upon receipt of any
undertaking required by the OGCL, if any). Without limiting the foregoing, in
the event any such claim, action, suit, proceeding or investigation is brought
against any Indemnified Parties (whether arising before or after the Effective
Time), (i) any counsel retained by Park on behalf of the Indemnified Parties for
any period after the Effective Time shall be reasonably satisfactory to the
Indemnified Party; (ii) after the Effective Time, the Surviving Corporation
shall pay all reasonable fees and expenses of such counsel for the Indemnified
Parties promptly as statements therefor are received; and (iii) after the
Effective Time, the Surviving Corporation will use all reasonable efforts to
assist in the vigorous defense of any such matter, provided that the Surviving
Corporation shall not be liable for any settlement of any claim effected without
its written consent, which consent however, shall not be unreasonably withheld.
Any Indemnified Party wishing to claim indemnification under this Section 5.11,
upon learning of any such claim, action, suit,
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proceeding or investigation, shall notify the Surviving Corporation (but the
failure so to notify the Surviving Corporation shall not relieve it from any
liability which it may have under this Section 5.11 except to the extent such
failure materially prejudices the Surviving Corporation), and shall deliver to
the Surviving Corporation the undertaking, if any, required by the OGCL. The
Surviving Corporation shall be liable for the fees and expenses hereunder with
respect to only one law firm, in addition to local counsel in each applicable
jurisdiction, to represent the Indemnified Parties as a group with respect to
each such matter unless there is, under applicable standards of professional
conduct, a conflict between the positions of any two or more Indemnified Parties
that would preclude or render inadvisable join or multiple representation of
such parties.
(b) Unless Park and First-Xxxx otherwise agree, First-Xxxx shall, prior
to the Effective Time, elect under its existing directors' and officers'
liability insurance policy to obtain extension coverage for the maximum period
allowable thereunder (36 months) and an endorsement providing lifetime coverage
for First-Xxxx directors and shall pay the premium necessary to obtain such
coverage extension and endorsement (with respect to the coverage extension, 75%
of the annual premium for the first 12 months, 50% of the annual premium for the
second 12 months and 25% of the annual premium for the last 12 months, and with
respect to the endorsement, $1,500 per First-Xxxx director).
(c) In the event Park or any of its successors or assigns (i)
consolidates with or merges into any other person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger or
(ii) transfers or conveys all or substantially all of its properties and assets
to any person, then, and in each such case, to the extent necessary, proper
provision shall be made so that the successors and assigns of Park assume the
obligations set forth in this section.
(d) The provisions of this Section 5.11 (i) are intended to be for the
benefit of, and shall be enforceable by, each Indemnified Party, his heirs and
his representatives and (ii) are in addition to, and not in substitution for,
any other rights to indemnification or contribution that any such person may
have by contract or otherwise.
5.12. Dividends. After the date of this Agreement, each of Park and
First-Xxxx shall coordinate with the other the payment of dividends with respect
to the Park Common Shares and First-Xxxx Common Shares and the record dates and
payment dates relating thereto, it being the intention of the parties hereto
that holders of Park Common Shares and First-Xxxx Common Shares shall not
receive two dividends, or fail to receive one dividend, for any single calendar
quarter with respect to their Park Common Shares and/or First-Xxxx Common Shares
or any Park Common Shares that any such holder receives in exchange for such
First-Xxxx Common Shares in the Merger. Park, at the discretion of its Board of
Directors, may increase its quarterly dividend to shareholders after the date of
this Agreement. First-Xxxx shall increase its quarterly dividend to shareholders
after the date of this Agreement in such amount that, after giving effect to the
increase in the quarterly dividend rate per First-Xxxx Common Share for such
quarter, its quarterly dividend to shareholders equals the amount that is paid
on a Park Common Share for that quarter, on an adjusted basis according to the
formula provided in
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Section 2.1(c), it being acknowledged and agreed that it is anticipated that
Park shall increase its quarterly dividend to $.40 per share for the fourth
quarter of 1996 and that, based thereon, First-Xxxx shall declare in December,
1996 a regular quarterly cash dividend of $.17 per First-Xxxx Common Share and a
special fourth quarter cash dividend of $.07 per First-Xxxx Common Share,
payable in January, 1997.
5.13 Title Insurance. For each parcel of real estate owned by
First-Xxxx or a Subsidiary of First-Xxxx and for each lease for any parcel of
real estate leased by First-Xxxx or a Subsidiary of First-Xxxx (collectively,
the "Real Property") as to which Park may specifically request, First-Xxxx shall
deliver to Park, no later than 30 days after the date hereof, and Park shall pay
for, a title insurance commitment (ALTA 1966 form or its equivalent) for a fee
owner's title insurance policy or leasehold owner's title insurance policy, as
appropriate, each in an amount equal to the carrying cost of the premises or
leasehold interest to be insured (including all improvements thereon), on the
books of First-Xxxx or the Subsidiary of First-Xxxx as of December 31, 1995.
Each title insurance commitment shall show that marketable fee simple title to
the owned premises or that valid leasehold title to the leased premises, as
appropriate, is in the name of First-Xxxx or a Subsidiary of First-Xxxx, and
that it is free and clear of any liens and encumbrances except taxes and
assessments not delinquent and utility and other easements that do not interfere
with the use of the property for the business being conducted thereon. Each such
commitment shall provide that such fee owners policy committed for therein shall
be an ALTA 1970 form, revised in 1994, and each leasehold-owner's policy shall
be a ALTA 1975 form, or other form acceptable to Park.
5.14 Survey. Within 30 days after the date of this Agreement,
First-Xxxx shall provide to Park, at Park's cost, current land surveys of those
parcels of the Real Property specifically designated by Park. Each survey shall
be conducted and prepared by a duly licensed land surveyor approved by Park and,
unless otherwise agreed by Park in writing, shall be a duly certified ALTA/ACSM
field survey, which shall comply with such requirements as are typical of
transactions of this type and shall confirm that the Real Property is not
subject to any easements, restrictions, set backs, encroachments, or other
limitations except utility and other easements that do not interfere with the
use of the Real Property for the business then being conducted thereon, and that
the Real Property is not located in any flood hazard area.
5.15 Forms 13D or 13G Filings. First-Xxxx shall promptly advise Park of
the filing of a Form 13D or 13G under the Exchange Act, if any, with respect to
First-Xxxx and shall provide Park with a copy of any such form promptly after
receipt thereof.
5.16 Tax Representations. First-Xxxx and Park will furnish letters to
Porter, Wright, Xxxxxx & Xxxxxx in such form as may be reasonably requested by
such counsel containing, to the extent the same are true, the representations
required by such counsel in order to enable such counsel to render the tax
opinion referred to in Sections 6.2(d) and 6.3(d) hereof.
5.17. Additional Agreements. In case at any time after the Effective
Time any further action is necessary or desirable to carry out the purposes of
this Agreement or to vest the Surviving Corporation with full title to all
properties, assets, rights, approvals, immunities and
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franchises of either of the Constituent Corporations, the proper officers and
directors of each party to this Agreement shall take all such necessary action.
ARTICLE VI
CONDITIONS PRECEDENT
6.1. Conditions to Each Party's Obligation To Effect the Merger. The
respective obligation of each party to effect the Merger shall be subject to the
satisfaction prior to the Closing Date of the following conditions:
(a) Shareholder Approval. This Agreement shall have been approved and
adopted by the affirmative vote of the holders of two-thirds of the outstanding
First-Xxxx Common Shares, and this Agreement shall have been approved and
adopted by the affirmative vote of the holders of two-thirds of the outstanding
Park Common Shares.
(b) AMEX Listing. The Park Common Shares issuable to First-Xxxx
shareholders pursuant to this Agreement and such other Park Common Shares
required to be reserved for issuance in connection with the Merger shall have
been authorized for listing on AMEX upon official notice of issuance.
(c) Other Approvals. Other than the filing provided for by Section 1.1,
all authorizations, consents, orders or approvals of, or declarations or filings
with, and all expirations of waiting periods imposed by, any Governmental Entity
(all the foregoing, "Consents") which are necessary for the consummation of the
Merger, other than immaterial Consents the failure to obtain which would have no
material adverse effect on the consummation of the Merger or on the Surviving
Corporation, shall have been filed, have occurred or been obtained (all such
permits, approvals, filings and consents and the lapse of all such waiting
periods being referred to as the "Requisite Regulatory Approvals") and all such
Requisite Regulatory Approvals shall be in full force and effect. Park shall
have received all state securities or blue sky permits and other authorizations
necessary to issue the Park Common Shares in exchange for First-Xxxx Common
Shares and to consummate the Merger.
(d) S-4. The S-4 shall have become effective under the Securities Act
and shall not be the subject of any stop order or proceedings seeking a stop
order.
(e) No Injunctions or Restraints; Illegality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition (an "Injunction")
preventing the consummation of the Merger shall be in effect. There shall not be
any action taken, or any statute, rule, regulation or order enacted, entered,
enforced or deemed applicable to the Merger, by any Federal or state
Governmental Entity which makes the consummation of the Merger illegal.
(f) Pooling. Park and First-Xxxx shall each have received a letter from
Ernst & Young, Park's accounting/audit firm, to the effect that the Merger
qualifies for "pooling of interests"
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accounting treatment if consummated in accordance with this Agreement and such
letters shall not have been withdrawn.
(g) Burdensome Condition. There shall not be any action taken, or any
statute, rule, regulation, order or decree enacted, entered, enforced or deemed
applicable to the Merger by any Federal or state Governmental Entity which, in
connection with the grant of a Requisite Regulatory Approval or otherwise,
imposes any condition or restriction (a "Burdensome Condition") upon the
Surviving Corporation or its Subsidiaries which would reasonably be expected to
either (i) have a material adverse effect after the Effective Time on the
present or prospective consolidated financial condition, business or operating
results of the Surviving Corporation, or (ii) prevent the parties from realizing
the major portion of the economic benefits of the Merger and the transactions
contemplated thereby that they currently anticipate obtaining.
6.2. Conditions to Obligations of Park. The obligation of Park to
effect the Merger is subject to the satisfaction of the following conditions
unless waived by Park:
(a) Representations and Warranties. The representations and warranties
of First-Xxxx set forth in this Agreement shall be true and correct as of the
date of this Agreement and (except to the extent such representations and
warranties speak as of an earlier date) as of the Closing Date as though made on
and as of the Closing Date, subject to such exceptions as do not have, and would
not reasonably be expected to have, individually or in the aggregate, a material
adverse effect on First-Xxxx or on the Surviving Corporation following the
Effective Time, and Park shall have received a certificate signed on behalf of
First-Xxxx by the Vice Chairman of the Board and by the President and Chief
Executive Officer and by the chief Financial Officer of First-Xxxx to such
effect.
(b) Performance of Obligations of First-Xxxx. First-Xxxx shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date, and Park shall have
received a certificate signed on behalf of First-Xxxx by the Vice Chairman of
the Board and by the President and Chief Executive Officer and by the Chief
Financial Officer of First-Xxxx to such effect.
(c) Consents Under Agreements. First-Xxxx shall have obtained the
consent or approval of each person (other than the Governmental Entities
referred to in Section 6.1(c)) whose consent or approval shall be required in
order to permit the succession by the Surviving Corporation pursuant to the
Merger to any obligation, right or interest of First-Xxxx or any Subsidiary of
First-Xxxx under any loan or credit agreement, note, mortgage, indenture, lease,
license or other agreement or instrument, except those for which failure to
obtain such consents and approvals would not, individually or in the aggregate,
have a material adverse effect, after the Effective Time, on the Surviving
Corporation.
(d) Tax Opinion. Park shall have received the opinion of Porter,
Wright, Xxxxxx & Xxxxxx, counsel to Park, dated the Closing Date, to the effect
that (i) the Merger will be treated for Federal income tax purposes as a
reorganization within the meaning of Section 368 (a) of the Code, (ii) Park and
First-Xxxx will each be a party to that reorganization within the meaning
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of Section 368(b) of the Code, (iii) no income, gain or loss will be recognized
for Federal income tax purposes by either First-Xxxx or Park as a result of the
consummation of the Merger, and (iv) no income, gain or loss will be recognized
for Federal income tax purposes by shareholders of First-Xxxx upon the exchange
in the Merger of First-Xxxx Common Shares solely for Park Common Shares (except
to the extent of any cash received in lieu of fractional shares).
(e) Legal Opinion. Park shall have received the opinion of Squire,
Xxxxxxx & Xxxxxxx, counsel to First-Xxxx, dated the Closing Date, with regard to
the matters referred to in Exhibit 6.2(e) to this Agreement.
(f) Fairness Opinion. Park shall have received for inclusion with the
Proxy Statement mailed to the shareholders of Park an opinion of McDonald as to
the fairness of the Merger to the shareholders of Park from a financial point of
view.
6.3. Conditions to Obligations of First-Xxxx. The obligation of
First-Xxxx to effect the Merger is subject to the satisfaction of the following
conditions unless waived by First-Xxxx:
(a) Representations and Warranties. The representations and warranties
of Park set forth in this Agreement shall be true and correct as of the date of
this Agreement and (except to the extent such representations speak as of an
earlier date) as of the Closing Date as though made on and as of the Closing
Date, subject to such exceptions as do not have, and would not reasonably be
expected to have, individually or in the aggregate, a material adverse effect on
Park or on the Surviving Corporation following the Effective Time, and
First-Xxxx shall have received a certificate signed on behalf of Park by the
Chairman of the Board, and Chief Executive Officer and by the Chief Financial
Officer of Park to such effect.
(b) Performance of Obligations of Park. Park shall have performed in
all material respects all obligations required to be performed by it under this
Agreement at or prior to the Closing Date, and First-Xxxx shall have received a
certificate signed on behalf of Park by the Chairman of the Board, and Chief
Executive Officer and by the Chief Financial Officer of Park to such effect.
(c) Consents Under Agreements. Park shall have obtained the consent or
approval of each person (other than the Governmental Entities referred to in
Section 6.1(c)) whose consent or approval shall be required in connection with
the transactions contemplated hereby under any loan or credit agreement, note,
mortgage, indenture, lease, license or other agreement or instrument, except
those for which failure to obtain such consents and approvals would not,
individually or in the aggregate, have a material adverse effect, after the
Effective Time, on the Surviving Corporation.
(d) Tax Opinion. First-Xxxx shall have received the opinion of Porter,
Wright, Xxxxxx & Xxxxxx, counsel to Park, dated the Closing Date, to the effect
that (i) the Merger will be treated for Federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the Code, (ii) Park and
First-Xxxx will each be a party to that reorganization within the meaning
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44
of Section 368(b) of the Code, (iii) no income, gain or loss will be recognized
for Federal income tax purposes by either First-Xxxx or Park as a result of the
consummation of the Merger, and (iv) no income, gain or loss will be recognized
for Federal income tax purposes by shareholders of First-Xxxx upon the exchange
in the Merger of First-Xxxx Common Shares solely for Park Common Shares (except
to the extent of any cash received in lieu of fractional shares).
(e) Legal Opinion. First-Xxxx shall have received the opinion of
Porter, Wright, Xxxxxx & Xxxxxx, counsel to Park, dated the Closing Date, with
regard to the matters referred to in Exhibit 6.3(e) to this Agreement.
(f) Authorization of Shares. Subject only to the filing of the
Certificate of Merger in accordance with the OGCL, Park shall have duly taken
all corporate action so that, when issued, the Park Common Shares to be issued
pursuant to Article II shall have been duly authorized, validly issued, fully
paid and non-assessable.
(g) Fairness Opinion. First-Xxxx shall have received for inclusion with
the Proxy Statement mailed to the shareholders of First-Xxxx an opinion of
Xxxxxxxxx as to the fairness of the Merger to the shareholders of First-Xxxx
from a financial point of view.
ARTICLE VII
TERMINATION AND AMENDMENT
7.1. Termination. This Agreement may be terminated at any time prior to
the Effective Time, by action taken or authorized by the Board of Directors of
the terminating party or parties, whether before or after approval of the
matters presented in connection with the Merger by the shareholders of
First-Xxxx or Park:
(a) by mutual consent of Park and First-Xxxx;
(b) by either Park or First-Xxxx if the Federal Reserve shall have
issued an order denying approval of the Merger and the other material aspects of
the transactions contemplated by this Agreement or if any Governmental Entity of
competent jurisdiction shall have issued a final permanent order enjoining or
otherwise prohibiting the consummation of the transactions contemplated by this
Agreement or imposing a Burdensome Condition, and in any such case the time for
appeal or petition for reconsideration of such order shall have expired without
such appeal or petition being granted;
(c) by either Park or First-Xxxx if the Merger shall not have been
consummated on or before October 31, 1997 unless extended by mutual consent of
the parties hereto;
(d) by either Park or First-Xxxx if any approval of the shareholders of
First-Xxxx or of Park required for the consummation of the Merger shall not have
been obtained by reason of the
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failure to obtain the required vote at a duly held meeting of shareholders or at
any adjournment thereof;
(e) by First-Xxxx in accordance with Section 2.1(d) or (e);
(f) by First-Xxxx if the Board of Directors of First-Xxxx determines in
good faith, after consultation with Xxxxxxxxx with respect to the financial
aspects of any Takeover Proposal for First-Xxxx and the Merger, and with legal
counsel to First-Xxxx, that termination of this Agreement and pursuit of a
Takeover Proposal for First-Xxxx is required by their fiduciary duties;
(g) by First-Xxxx if Park receives a Takeover Proposal or events have
occurred or actions commenced which are reasonably expected to result in a
Takeover Proposal for Park being submitted or effected; or
(h) by either Park or First-Xxxx within 18 business days of the
execution of this Agreement if (i) such party determines, in its sole
discretion, that its due diligence review has disclosed one or more material,
adverse facts, problems or conditions, (ii) such party provides written notice
of such defect or defects to the other party before the expiration of ten
business days after the execution of this Agreement, and (iii) the other party
has not cured such defect or defects to the satisfaction of such party within
five business days thereafter.
7.2. Effect of Termination. (a) In the event of termination of this
Agreement by either First-Xxxx or Park as provided in Section 7.1, this
Agreement shall forthwith become void and there shall be no liability or
obligation on the part of Park or First-Xxxx or their respective officers or
directors except (i) with respect to Sections 3.1(s) and 3.2(s), the penultimate
sentence of Section 5.2, and Section 5.9, (ii) as provided in Section 7.2(b) and
(iii) with respect to any liabilities or damages incurred or suffered by a party
as a result of the wilful breach by the other party of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
(b) During the term of this Agreement if:
(i) a Takeover Proposal for First-Xxxx is submitted to and approved by
the shareholders of First-Xxxx at any time prior to October 31, 1997; or
(ii) (x) a Takeover Proposal for First-Xxxx is received by First-Xxxx
or is made directly to the shareholders of First-Xxxx at any time prior to
October 31, 1997, (y) the Board of Directors of First-Xxxx (I) fails to
recommend to the shareholders of First-Xxxx that they vote their First-Xxxx
Common Shares in favor of the approval of the Merger, (II) withdraws such
recommendation previously made, or (III) fails to solicit proxies of
shareholders of First-Xxxx to approve the Merger, and (z) the Merger is not
consummated by October 31, 1997;
then, in either such event First-Xxxx shall pay to Park, within five business
days after a termination of this Agreement following such an event, a
termination fee in the amount of
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$2,140,000 as liquidated damages, and not as a penalty, and, upon the payment in
full thereof, First-Xxxx shall have no further liability or obligations under
this Agreement (including under Section 7.2(a)(iii)). The obligations of
First-Xxxx under this Section 7.2(b) shall survive a termination of this
Agreement.
7.3. Amendment. This Agreement may be amended by the parties hereto by
action taken or authorized by their respective Boards of Directors, at any time
before or after approval of the matters presented in connection with the Merger
by the shareholders of First-Xxxx or of Park, but, after any such approval, no
amendment shall be made which by law requires further approval by such
shareholders without such further approval. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto.
7.4. Extension; Waiver. At any time prior to the Effective Time, the
parties hereto, by action taken or authorized by their respective Board of
Directors, may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto and (iii) waive compliance
with any of the agreements or conditions contained herein. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid only if
set forth in a written instrument signed on behalf of such party.
ARTICLE VIII
GENERAL PROVISIONS
8.1. Nonsurvival of Representations, Warranties and Agreements. None of
the representations, warranties, covenants and agreements in this Agreement or
in any instrument delivered pursuant to this Agreement, including any rights
arising out of any breach of such representations, warranties, covenants, and
agreements, shall survive the Effective Time, except for those covenants and
agreements contained herein that by their terms apply or are to be performed in
whole or in part after the Effective Time.
8.2. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed duly given (a) on the date of delivery if
delivered personally, or by telecopy or telefacsimile, upon confirmation of
receipt, (b) on the first business day following the date of dispatch if
delivered by a recognized next-day courier service, or (c) on the third business
day following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder shall be
delivered as set forth below, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice.
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(a) if to Park, to
Park National Corporation
00 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxx,
Senior-Vice President
Telecopy No.: 000-000-0000
with a copy to
Porter, Wright, Xxxxxx & Xxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Cheap
Telecopy No.: (000) 000-0000
and
(b) if to First-Xxxx, to
The First-Xxxx Banc Corp.
Xxx Xxxxx Xxxx Xxxxxx
X.X. Xxx 000
Xxxxx Xxxxxx, Xxxx 00000
Attn: Xxx Xxxxxx
Telecopy No.: (000) 000-0000
with a copy to
Squire, Xxxxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxxxxx Xxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
8.3. Interpretation. When a reference is made in this Agreement to
Sections, Exhibits or Schedules, such reference shall be to a Section of or
Exhibit or Schedule to this Agreement unless otherwise indicated. The table of
contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation". The phrase "made available" in this Agreement shall mean that the
information referred to has been made available if requested by the party to
whom such information is to be made available. The
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phrases "the date of this Agreement", "the date hereof" and terms of similar
import, unless the context otherwise requires, shall be deemed to refer to
October 28, 1996.
8.4. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that both
parties need not sign the same counterpart.
8.5. Entire Agreement; No Third Party Beneficiaries; Rights of
Ownership. This Agreement (including the documents and the instruments referred
to herein) (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof, other than the Confidentiality Agreement,
which shall survive the execution and delivery of this Agreement and (b) except
as provided in Section 5.11, is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder. The parties hereby
acknowledge that, except as hereinafter agreed to in writing, no party shall
have the right to acquire or shall be deemed to have acquired common shares of
the other party pursuant to the Merger until consummation thereof.
8.6. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Ohio, without regard to any applicable
conflicts of law provisions thereof.
8.7. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability and, unless the
effect of such invalidity or unenforceability would prevent the parties from
realizing the major portion of the economic benefits of the Merger that they
currently anticipate obtaining therefrom, shall not render invalid or
unenforceable the remaining terms and provisions of this Agreement or affect the
validity or enforceability of any of the terms or provisions of this Agreement
in any other jurisdiction. If any provision of this Agreement is so broad as to
be unenforceable, the provision shall be interpreted to be only so broad as is
enforceable. For purposes of this Agreement, the term "major portion" of the
economic benefits of the Merger means two-thirds of such economic benefits.
8.8. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party, and any attempt to make any such assignment without
such consent shall be null and void. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns.
8.9. Press Releases and Public Announcements. No party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement without the prior approval of the other party; provided, however,
that any party may make any public disclosure it believes in good faith is
required by applicable law or any listing or trading
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agreement concerning its publicly-traded securities (in which case the
disclosing party will use its best efforts to advise the other party prior to
making the disclosure).
IN WITNESS WHEREOF, Park and First-Xxxx have caused this Agreement to
be signed by their respective officers hereunto duly authorized, all as of
October 28, 1996.
PARK NATIONAL CORPORATION FIRST-XXXX BANC CORP.
By: /s/ Xxxxxxx X. XxXxxxxxx By: /s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------------- --------------------------------
Xxxxxxx X. XxXxxxxxx, Chairman of Xxxxxx X. Xxxxxx, Xx.,
the Board and Chief Executive Vice Chairman of the Board
Officer
By: /s/ C. Xxxxxx XxXxxxxx By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------- --------------------------------
C. Xxxxxx XxXxxxxx, President Xxxxxx X. Xxxxxxx, President
and Chief Executive Officer
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EXHIBIT 5.5
AFFILIATE AGREEMENT
-------------------
Gentlemen:
I have been advised that as of the date hereof I may be deemed to be an
"affiliate" of First-Xxxx Banc Corp., an Ohio corporation ("First-Xxxx"), as the
term "affiliate" is (i) defined for purposes of paragraphs (c) and (d) of Rule
145 of the Rules and Regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), and/or (ii) used in and for purposes of Accounting Series,
Releases 130 and 135, as amended, of the Commission. Pursuant to the terms of
the Agreement and Plan of Merger, dated as of _________, 1996, by and between
First-Xxxx and Park National Corporation, an Ohio corporation ("Park") (the
"Agreement"), First-Xxxx will be merged (the "Merger") into and with Park and
the name of the surviving corporation will be Park National Corporation, an Ohio
corporation (the "Surviving Corporation").
As used herein, "First-Xxxx Common Stock" means the Common Shares, par
value $3.125 per share, of First-Xxxx and "Surviving Corporation Common Stock"
means the Common Shares, without a par value, of the Surviving Corporation.
I represent, warrant, and covenant to the Surviving Corporation that in
the event I receive any Surviving Corporation Common Stock as a result of the
Merger:
A. I shall not make any sale, transfer, or other disposition of
any Surviving Corporation Common Stock acquired by me in the Merger in
violation of the Act or the Rules and Regulations.
B. I have carefully read this letter and the Agreements and
discussed their requirements and other applicable limitations upon my
ability to sell, transfer, or otherwise dispose of Surviving
Corporation Common Stock to the extent I felt necessary, with my
counsel or counsel for First-Xxxx.
C. I have been advised that the issuance of Surviving Corporation
Common Stock to me pursuant to the Merger has been or will be
registered with the Commission under the Act on a Registration
Statement on Form S-4. However, I have also been advised that, because
at the time the Merger will be submitted for a vote of the
shareholders of First-Xxxx, I may be deemed to be an affiliate of
First-Xxxx, the distribution by me of any Surviving Corporation Common
Stock acquired by me in the Merger will not be registered under the
Act and that I may not sell, transfer, or otherwise dispose of any
Surviving Corporation Common Stock acquired by me in the Merger unless
(i) such sale, transfer, or other disposition has been registered
under the Act, (ii) such sale,
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transfer, or other disposition is made in conformity with the volume
and other limitations of Rule 145 promulgated by the Commission under
the Act, or (iii) in the opinion of counsel reasonably acceptable to
the Surviving Corporation, such sale, transfer, or other disposition
is otherwise exempt from registration under the Act.
D. I understand that the Surviving Corporation is under no
obligation to register under the Act the sale, transfer, or other
disposition by me or on my behalf of any Surviving Corporation Common
Stock acquired by me in the Merger or to take any other action
necessary in order to make an exemption from such registration
available.
E. I also understand that stop transfer instructions will be
given to the Surviving Corporation's transfer agents with respect to
Surviving Corporation Common Stock and that there will be placed on
the certificates for the Surviving Corporation Common Stock acquired
by me in the Merger, or any substitutions therefor, a legend stating
in substance:
"The shares represented by this certificate were issued in a
transaction to which Rule 145 promulgated under the Securities
Act of 1933 applies. The shares represented by this certificate
may only be transferred in accordance with the terms of an
agreement dated ______, 1996 between the registered holder hereof
and the issuer of the certificate, a copy of which agreement will
be mailed to the holder hereof without charge within five days
after receipt of written request therefor."
F. I also understand that unless the transfer by me of my
Surviving Corporation Common Stock has been registered under the Act
or is a sale made in conformity with the provisions of Rule 145, the
Surviving Corporation reserves the right to put the following legend
on the certificates issued to my transferee:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 and were acquired
from a person who received such shares in a transaction to which
Rule 145 promulgated under the Securities Act of 1933 applies.
The shares may not be sold, pledged or otherwise transferred
except in accordance with an exemption from the registration
requirements of the Securities Act of 1933."
It is understood and agreed that the legends set forth in paragraph E
and F above shall be removed by delivery of substitute certificates without such
legend if the undersigned shall have delivered to the Surviving Corporation a
copy of a letter from the staff of the Commission, or an opinion of counsel in
form and substance reasonably satisfactory to the Surviving Corporation, to the
effect that such legend is not required for purposes of the Act.
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I further represent to and covenant with First-Xxxx and the Surviving
Corporation that I will not, within the 30 days prior to the Effective Time (as
defined in the Agreements), sell, transfer, or otherwise dispose of any shares
of First-Xxxx Common Stock and that I will not sell, transfer, or otherwise
dispose of any shares of Surviving Corporation Common Stock (whether or not
acquired by me in the Merger) until after such time as results covering at least
30 days of combined operations of First-Xxxx and Park have been published by the
Surviving Corporation, in the form of a quarterly earnings report, an effective
registration statement filed with the Commission, a report to the Commission on
Form 10-K, 10-Q, or 8-K, or any other public filing or announcement which
includes the combined results of operations. Furthermore, I understand that
First-Xxxx and the Surviving Corporation will give stop transfer instructions to
their respective transfer agents in order to prevent the breach of the
representations, warranties, and covenants made by me in this paragraph. I also
understated that the Merger is intended to be treated for accounting purposes as
a "pooling of interests," and I agree that, if First-Xxxx or the Surviving
Corporation advises me in writing that additional restrictions apply to my
ability to sell, transfer, or otherwise dispose of First-Xxxx Common Stock or
Surviving Corporation Common Stock in order to be entitled to use the pooling of
interest accounting method, I will abide by such restrictions.
Very truly yours,
-------------------------------
Name:
Accepted this day of
------
, 1996,
-------------
By:
-----------------------------
Name:
Title:
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EXHIBIT 6.2(e)
OPINION OF COUNSEL FOR FIRST-XXXX
---------------------------------
Park shall have received a favorable opinion dated as of the Closing
Date from Squire, Xxxxxxx & Xxxxxxx, as counsel for First-Xxxx, reasonably
acceptable to Park, to the effect that:
(a) First-Xxxx Bank is a national banking association, duly organized,
validly existing, and in good standing under the laws of the United States;
Farmers is a state-chartered bank, duly organized, validly existing, and in good
standing under the laws of the State of Ohio; First-Xxxx is a corporation duly
organized, validly existing, and in good standing under the laws of Ohio; all
eligible accounts of deposit in First-Xxxx Bank and Farmers are insured by the
Federal Deposit Insurance Corporation to the fullest extent permitted by law;
First-Xxxx is a duly and validly registered bank holding company under the BHCA;
all corporate action required to be taken by the directors and shareholders of
First-Xxxx to authorize the transactions contemplated by the Merger Agreement
have been taken; and First-Xxxx has the corporate power to effect the Merger in
accordance with the terms of the Merger Agreement;
(b) the execution and delivery of the Merger Agreement did not, and the
consummation of the Merger will not, conflict with any provision of the articles
or certificate of incorporation, regulations, bylaws, or other charter documents
of First-Xxxx or its Significant Subsidiaries;
(c) the execution and delivery of the Merger Agreement and the
consummation of the Merger have been authorized by all necessary corporate
action of First-Xxxx; and the Merger Agreement is a valid and binding agreement
of First-Xxxx in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, or similar laws affecting enforcement of
creditors' rights generally and except that the enforceability of the
obligations of First-Xxxx may be subject to general principles of equity;
(d) First-Xxxx and its Significant Subsidiaries have the corporate
power and authority to own all of their properties and assets and to carry on
their businesses as presently conducted in all jurisdictions in which such
ownership exists or such business is conducted; First-Xxxx and its Significant
Subsidiaries are not required to be qualified to do business in any jurisdiction
other than Ohio; and
(e) such counsel knows of no pending or threatened litigation,
proceeding, or investigation which might result in any material adverse change
in the business, properties, or financial condition of First-Xxxx or its
Significant Subsidiaries.
Such opinion may be governed by the Accord. In giving such opinion,
such counsel may rely as to matters of fact, without independent investigation,
to the extent such counsel deems such reliance to be customary, reasonable, and
appropriate, on certificates of federal, state, or local government officials
and on certificates of officers and directors of First-Xxxx and its Significant
Subsidiaries. Such counsel may add such other qualifications and explanations of
the basis of its opinions as are consistent with the Accord.
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EXHIBIT 6.3(e)
OPINION OF COUNSEL FOR PARK
---------------------------
First-Xxxx shall have received a favorable opinion dated as of the
Closing Date from Porter, Wright, Xxxxxx & Xxxxxx, as counsel for Park,
reasonably acceptable to First-Xxxx, to the effect that:
(a) The Park National Bank, Newark, Ohio, is a national banking
association, duly organized, validly existing, and in good standing under the
laws of the United States; Park is a corporation duly organized, validly
existing, and in good standing under the laws of Ohio; all eligible accounts of
deposit in The Park National Bank, Newark, Ohio, is insured by the Federal
Deposit Insurance Corporation to the fullest extent permitted by law; Park is a
duly and validly registered bank holding company under the BHCA and a duly and
validly registered savings and loan holding company under the HOLA; all
corporate action required to be taken by the directors and shareholders of Park
to authorize the transactions contemplated by the Merger Agreement have been
taken; and Park has the corporate power to effect the Merger in accordance with
the terms of the Merger Agreement;
(b) the execution and delivery of the Merger Agreement did not, and the
consummation of the Merger will not, conflict with any provision of the articles
or certificate of incorporation, regulations, bylaws, or other charter documents
of Park or its Significant Subsidiaries;
(c) the execution and delivery of the Merger Agreement and the
consummation of the Merger have been authorized by all necessary corporate
action of Park and the Merger Agreement is a valid and binding agreement of Park
in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, or similar laws affecting enforcement of creditors'
rights generally and except that the enforceability of the obligations of Park
may be subject to general principles of equity;
(d) Park and its Significant Subsidiaries have the corporate power and
authority to own all of their properties and assets and to carry on their
businesses as presently conducted in all jurisdictions in which such ownership
exists or such business is conducted; Park and its Significant Subsidiaries are
not required to be qualified to do business in any jurisdiction other than Ohio;
and
(e) such counsel knows of no pending or threatened litigation,
proceeding, or investigation which might result in any material adverse change
in the business, properties, or financial condition of Park or its Significant
Subsidiaries.
Such opinion may be governed by the Accord. In giving such opinion,
such counsel may rely as to matters of fact, without independent investigation,
to the extent such counsel deems such reliance to be customary, reasonable, and
appropriate, on certificates of federal, state, or local government officials
and on certificates of officers and directors of Park and its Significant
Subsidiaries. Such counsel may add such other qualifications and explanations of
the basis of its opinions as are consistent with the Accord.
47
