AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

dated to be effective as of

September 14, 2006

by and between

PARK NATIONAL CORPORATION

and

VISION BANCSHARES, INC.

TABLE OF CONTENTS

 

 

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This AGREEMENT AND PLAN OF MERGER , dated to be effective as of September 14, 2006, is made and entered into by and between Park National Corporation ( “ Park ” ), an Ohio corporation having its principal place of business in Newark, Ohio, and Vision Bancshares, Inc. ( “ Vision Bancshares ” ), an Alabama corporation having its principal place of business in Panama City, Florida.

RECITALS

A. The Proposed Transaction . The parties to this Agreement intend to effect a strategic business combination through the merger of Vision Bancshares with and into Park.

B. Board Determination . The Board of Directors of Park has determined that the Merger and the other transactions contemplated by this Agreement are consistent with and will further Park’s business strategies and goals and are in the best interests of Park’s shareholders and, therefore, has approved the Merger, this Agreement and the plan of merger contained in this Agreement. The Board of Directors of Vision Bancshares, in connection with the Merger and the other transactions contemplated by this Agreement, has determined that this Agreement, the Merger and the other transactions contemplated by this Agreement are in the best interests of Vision Bancshares and its shareholders and, therefore, has approved the Merger and adopted this Agreement and the plan of merger contained in this Agreement.

C. Intended Tax Treatment . The parties to this Agreement intend that the Merger be treated as a reorganization described in Section 368(a) of the Internal Revenue Code of 1986, as amended (the “ Code ” ), and intend for this Agreement to constitute a “plan of reorganization” within the meaning of the Code.

NOW, THEREFORE , in consideration of the foregoing premises and of the mutual covenants, representations, warranties and agreements contained herein, intending to be legally bound hereby, the parties agree as follows:

ARTICLE I - Certain Definitions

1.01 Certain Definitions . The following terms are used in this Agreement with the meanings set forth below:

“ Acquisition Proposal ” means any tender or exchange offer for more than 25% of the equity securities of Vision Bancshares, Vision Alabama or Vision Florida, any proposal for a merger, consolidation or other business combination involving Vision Bancshares, Vision Alabama or Vision Florida, or any proposal or offer to acquire in any manner a greater-than-25% equity interest in, or more-than-25% portion of the assets or deposits of, Vision Bancshares, Vision Alabama or Vision Florida, other than the transactions contemplated by this Agreement.

“ Affiliate ” means, with respect to any Person, another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person.

“ Affiliate Agreements ” has the meaning set forth in Section 5.02(k)(i)(N).

“ Agreement ” means this Agreement, as amended or modified from time to time in accordance with Section 9.02.

“ Alabama Code ” means the Alabama Business Corporation Act, as currently in effect.

“ Alabama SOS ” means the Secretary of State of the State of Alabama.

“ AMEX ” means the American Stock Exchange LLC.

“ Associate ” has the meaning set forth in Rule 12b-2 under the Exchange Act.

“ BHCA ” has the meaning set forth in Section 5.02(a).

“ Cash Election ” has the meaning set forth in Section 3.01(a)(ii).

“ CERCLA ” has the meaning set forth in the definition of “ Environmental Laws .”

“ Change in Recommendation ” has the meaning set forth in Section 8.01(f).

“ Closing ” has the meaning set forth in Section 2.03(a).

“ Closing Date ” has the meaning set forth in Section 2.03(a).

“ Code ” has the meaning set forth in Recital C.

“ Compensation and Benefit Plans ” has the meaning set forth in Section 5.02(m)(i).

“ Consultant ” means any current or former consultant of Vision Bancshares or any of its Subsidiaries.

“ Continuing Employee(s) ” has the meaning set forth in Section 6.16(c).

“ Contract ” means, with respect to any Person, any agreement, indenture, undertaking, debt instrument, contract, lease, understanding or other commitment, whether oral or in writing, to which such Person or any of its Subsidiaries is a party or by which any of them is bound or to which any of their properties is subject.

“ Determination Date ” has the meaning set forth in Section 8.01(g)(i).

“ Director ” means any current or former director of Vision Bancshares or any of its Subsidiaries.

“ Effective Time ” has the meaning set forth in Section 2.02.

“ Election ” has the meaning set forth in Section 3.02(d).

“ Election Deadline ” has the meaning set forth in Section 3.02(d).

“ Election Form/Letter of Transmittal ” has the meaning set forth in Section 3.02(d).

“ Election Period ” has the meaning set forth in Section 3.02(d).

“Employee” means any current or former employee of Vision Bancshares or any of its Subsidiaries. All references herein to “ employees of Vision Bancshares ” or “ Vision Bancshares employees ” shall be deemed to mean employees of Vision Bancshares and its Subsidiaries.

“ Employment Agreements ” has the meaning set forth in Section 6.16(a).

 

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“ Environmental Laws ” means all applicable local, state and federal environmental, health and safety Laws, permits, authorizations, common Law or agency requirements, including, without limitation, the Resource Conservation and Recovery Act (“ RCRA ”), the Comprehensive Environmental Response, Compensation and Liability Act (“ CERCLA ”), the Clean Water Act, the Federal Clean Air Act, and the Occupational Safety and Health Act, each as amended, the regulations promulgated thereunder, and their respective state counterparts.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

“ ERISA Affiliate ” has the meaning set forth in Section 5.02(m)(iii).

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“ Exchange Agent ” has the meaning set forth in Section 3.05(a).

“ Exchange Fund ” has the meaning set forth in Section 3.05(a).

“ 409A ” has the meaning set forth in Section 5.02(m)(xi).

“ FDIA ” has the meaning set forth in Section 5.02(c)(iii).

“ FDIC ” means the Federal Deposit Insurance Corporation.

“ FHLB ” means Federal Home Loan Bank.

“ GAAP ” means generally accepted accounting principles as adopted for U.S. accounting principles, practices and methods.

“ Governing Documents ” means with respect to any Person, such Person’s articles of incorporation/certificate of incorporation/articles of association and its constitution/code of regulations/bylaws or other similar governing documents.

“ Governmental Authority ” means any court, arbitration panel, administrative agency or commission or other federal, state or local governmental authority or instrumentality.

“ Hazardous Material ” means, collectively, (a) any “hazardous substance” as defined by CERCLA, as amended through the date hereof, or regulations promulgated thereunder, (b) any “hazardous waste” as defined by RCRA, as amended through the date hereof, or regulations promulgated thereunder, and (c) other than common office supplies, any pollutant or contaminant or hazardous, dangerous or toxic chemical, material or substance within the meaning of any other applicable federal, state or local Law relating to or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, all as now in effect.

“ Indemnified Party ” has the meaning set forth in Section 6.15(a).

“ Information ” has the meaning set forth in Section 6.05(b).

“ Intellectual Property ” shall mean Trademarks, inventions and discoveries that may be patentable, patents, trade secrets, copyrightable works, copyrights, and any other intellectual property rights, and including, with respect to any of the foregoing and in any jurisdiction, any and all applications,

 

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registrations and rights of registration, reissues, divisions, continuations, continuations-in-part, substitutes, modifications, renewals and extensions.

“ IRS ” has the meaning set forth in Section 5.02(m)(ii).

The term “ knowledge ” means, with respect to a party hereto, knowledge of a particular fact or other matter by any officer of that party or of a Subsidiary of that party with the title of not less than a senior vice president, any director of that party or of a Subsidiary of that party, or that party’s in-house legal counsel, if any. An individual will be deemed to have “knowledge” of a particular fact or other matter if such individual is actually aware of such fact or other matter or a prudent individual would be reasonably expected to discover or otherwise become aware of such fact or other matter in the course of conducting a reasonably comprehensive investigation concerning the existence of such fact or other matter.

“ Law ” means any federal, state, foreign or local statute, law, rule or resolution or any order, decision, decree, injunction, judgment, award or decree of any Governmental Authority.

“ Letter of Transmittal ” has the meaning set forth in Section 3.05(c).

“ Lien ” means any charge, mortgage, pledge, security interest, hypothecation, restriction, claim, option, lien, encumbrance or like interest of any other Person of any nature whatsoever.

“ Loans ” means loans, leases, extensions of credit (including guarantees), commitments to extend credit and other similar assets or obligations, as the case may be.

“ Material ” when used in reference to any event, change, effect, development, circumstance or occurrence with respect to any entity means an event, change, effect, development, circumstance or occurrence which is or is reasonably likely to be material in relation to the financial position, results of operations, properties, assets, liabilities or businesses of such entity and its Subsidiaries taken as a whole.

“ Material Adverse Effect ” means, with respect to any entity, an event, change, effect, development, circumstance or occurrence that, individually or together with any other event, change, effect, development, circumstance or occurrence (a) has or would be reasonably likely to have a material adverse effect on the business, condition (financial or otherwise), results of operations, capitalization, assets (tangible or intangible), liabilities (accrued, contingent or otherwise), regulatory affairs or financial performance of such entity and its Subsidiaries taken as a whole, or (b) materially impairs the ability of such entity to perform its obligations under this Agreement or otherwise materially threatens or materially impedes the consummation of the Merger and the other transactions contemplated by this Agreement; provided, however , that Material Adverse Effect shall not be deemed to include the impact of (i) changes after the date of this Agreement in banking and similar Laws of general applicability or interpretations thereof by any Governmental Authority or Regulatory Authority or other changes affecting depository institutions generally (except to the extent that such changes affect Vision Bancshares and its Subsidiaries, on the one hand, or Park and its Subsidiaries, on the other hand, in a manner disproportionate to the effect on depository institutions generally), or changes in GAAP or applicable regulatory accounting principles; (ii) any modifications or changes to valuation policies and practices in connection with the Merger to the extent requested by Park, or restructuring charges requested by Park and taken in connection with the Merger, in each case in accordance with GAAP; (iii) changes resulting from expenses (such as legal, accounting and investment bankers’ fees) incurred in connection with this Agreement or the transactions contemplated by this Agreement; or (iv) actions or omissions of a party which have been waived in accordance with Section 9.02.

 

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“ Material Contracts ” has the meaning set forth in Section 5.02(k)(ii).

“ Material Interest ” has the meaning set forth in the definition of “ Related Person .”

“ Maximum Amount ” has the meaning set forth in Section 6.15(b).

“ Merger ” refers to the merger of Vision Bancshares with and into Park, as described in Section 2.01.

“ Merger Consideration ” has the meaning set forth in Section 3.01(a).

“ NASD ” means the National Association of Securities Dealers, Inc.

“ New Certificates ” has the meaning set forth in Section 3.05(c).

“ NQDC Plan ” has the meaning set forth in Section 5.02(m)(xi).

“ OCC ” means the Office of the Comptroller of the Currency.

“ Officer ” means any current or former officer of Vision Bancshares or any of its Subsidiaries.

“ OGCL ” shall mean Ohio General Corporation Law, as currently in effect.

“ Ohio SOS ” means the Secretary of State of the State of Ohio.

“ Old Certificate ” has the meaning set forth in Section 3.05(c).

“ Out-of-Pocket Expenses ” has the meaning set forth in Section 8.03(c).

“ Park ” has the meaning set forth in the preamble to this Agreement.

“ Park Articles ” means the Articles of Incorporation, as amended, of Park.

“ Park Board ” means the Board of Directors of Park.

“ Park Common Shares ” means the common shares, without par value, of Park.

“ Park Exchange Value ” shall mean $101.00.

“ Park Financial Statements ” has the meaning set forth in Section 5.03(f)(i).

“ Park Reference Price ” has the meaning set forth in Section 8.01(g)(i).

“ Park Regulations ” means the Regulations, as amended, of Park.

“ Park SEC Documents ” has the meaning set forth in Section 5.03(g)(i).

“ Patriot Act ” means the USA Patriot Act of 2001, as amended.

“ Person ” means any individual, bank, corporation, partnership, limited liability company, statutory trust, joint venture, trust, unincorporated association or organization, government body, agency or instrumentality, or any other entity.

 

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“ Previously Disclosed ” by a party shall mean information set forth in such party’s Disclosure Schedule. Disclosure of any information, agreement or other item in a party’s Disclosure Schedule referenced by a particular Section in this Agreement shall, should the existence of such information, agreement or other item or its contents be relevant to any other Section, be deemed to be disclosed with respect to that Section only if such Section of the Disclosure Schedule contains such information or a specific cross-reference to such other relevant Section (including any specific items or information within such Section) of the Disclosure Schedule.

“ Proxy Statement ” has the meaning set forth in Section 6.03(a).

“ Proxy Statement/Prospectus ” has the meaning set forth in Section 6.03(a).

“ RCRA ” has the meaning set forth in the definition of “ Environmental Laws .”

“ Reference Period ” has the meaning set forth in Section 8.01(g)(i).

“ Registration Statement ” has the meaning set forth in Section 6.03(a).

“ Regulatory Authority ” shall mean any federal or state governmental agency or authority charged with the supervision or regulation of financial institutions (or their holding companies) or issuers of securities or engaged in the insurance of deposits (including, without limitation, the Ohio Division of Financial Institutions, the Ohio Division of Securities, the Alabama State Banking Department, the Alabama Department of Insurance, the Alabama Securities Commission, the Florida Office of Financial Regulation, the Florida Financial Services Commission, the FRB, the FDIC and the SEC) or the supervision or regulation of such entities or any of their respective Subsidiaries.

“ Related Person ” means any Person (or family member of such Person) (a) that, directly or indirectly, controls, or is under common control with, Vision Bancshares or any of its Affiliates or Subsidiaries, (b) that serves as a director, officer, employee, partner, member, manager, executor or trustee of Vision Bancshares or any of its Affiliates or Subsidiaries (or in any other similar capacity), (c) that has, or is a member of a group having, direct or indirect beneficial ownership (as defined for purposes of Rule 13d-3 under the Exchange Act) of voting securities or other voting interests representing at least 5% of the outstanding voting power or equity securities or other equity interests representing at least 5% of the outstanding equity interests (a “ Material Interest ”) in Vision Bancshares or any of its Affiliates or Subsidiaries, (d) in which any Person (or family member of such Person) that falls under clause (a), (b) or (c) above directly or indirectly holds a Material Interest or serves as a director, officer, employee, partner, member, manager, executor or trustee (or in any similar capacity) or (e) that otherwise qualifies as a “related person” for purposes of Item 404 of SEC Regulation S-K as amended in SEC Release No. 33-8732A (dated August 29, 2006).

“ Required Party ” has the meaning set forth in Section 6.05(b).

“ Required Vision Bancshares Vote ” has the meaning set forth in Section 5.02(e).

“ Rights ” means, with respect to any Person, securities or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, or any options, warrants, calls, rights or commitments or agreements relating to, or any stock appreciation right or other instrument the value of which is determined in whole or in part by reference to the market price or value of, shares of capital stock of, or other equity or voting interests in, such Person.

 

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“ Sarbanes-Oxley Act ” means the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder.

“ SEC ” means the Securities and Exchange Commission.

“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“ Starting Date ” has the meaning set forth in Section 8.01(g)(i).

“ Stock Election ” has the meaning set forth in Section 3.01(a)(i).

“ Stock Exchange Ratio ” has the meaning set forth in Section 3.01(a)(i).

“ Subsidiary ” and “ Subsidiaries ” have the meanings ascribed to them in Rule 1-02 of Regulation S-X of the SEC.

“ Superior Proposal ” has the meaning set forth in Section 6.06.

“ Surviving Corporation ” has the meaning set forth in Section 2.01.

“ Takeover Laws ” has the meaning set forth in Section 5.02(o).

“ Takeover Provisions ” has the meaning set forth in Section 5.02(o).

“ Tax ” and “ Taxes ” means (a) all federal, state, local or foreign taxes, charges, fees, levies or other assessments, however denominated, including, without limitation, all net income, gross income, gross receipts, gains, premium, sales, use, ad valorem, goods and services, capital, production, transfer, franchise, windfall profits, license, withholding, payroll, employment, disability, employer health, excise, estimated, severance, stamp, occupation, property, environmental, unemployment or other taxes, custom duties, fees, assessments or charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts imposed by any taxing authority whether arising before, on or after the Effective Time; and (b) any transferee liability in respect of any items described in clause (a) above.

“ Tax Returns ” means any return, amended return or other report (including elections, declarations, disclosures, schedules, estimates and information returns) required to be filed with respect to any Tax.

“ Termination Fee ” has the meaning set forth in Section 8.03(a).

“ Trademark ” means any trademark, service mark, trade name, trade dress, logo or insignia, domain name, or other source or business identifier, including the goodwill associated with any of the foregoing.

“ Trading Day ” means a day on which actual trades of Park Common Shares occur.

“ Treasury Regulations ” has the meaning set forth in Section 2.03(c)(iii).

“ Treasury Stock ” means shares of Vision Bancshares Common Stock held by Vision Bancshares or any of its Subsidiaries, other than in a fiduciary capacity or as a result of debts previously contracted in good faith.

 

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“ U. S. ” or “ United States ” means United States of America.

“ Vision Alabama ” means Vision Bank, an Alabama state banking corporation which is a wholly-owned subsidiary of Vision Bancshares.

“ Vision Bancshares ” has the meaning set forth in the preamble to this Agreement.

“ Vision Bancshares Affiliate ” has the meaning set forth in Section 6.07.

“ Vision Bancshares Articles ” means the Amended and Restated Articles of Incorporation, as amended, of Vision Bancshares.

“ Vision Bancshares Board ” means the Board of Directors of Vision Bancshares.

“ Vision Bancshares Bylaws ” means the Bylaws, as amended, of Vision Bancshares.

“ Vision Bancshares Common Stock ” means the common stock, $1.00 par value per share, of Vision Bancshares.

“ Vision Bancshares Disclosure Schedule ” has the meaning set forth in Section 5.01.

“ Vision Bancshares Dissenting Share ” has the meaning set forth in Section 3.09.

“ Vision Bancshares ESPP ” means the Vision Bancshares, Inc. Employee Stock Purchase Plan, as amended.

“ Vision Bancshares Financial Statements ” has the meaning set forth in Section 5.02(g)(i).

“ Vision Bancshares ISO Common Stock ” has the meaning set forth in Section 3.02(g).

“ Vision Bancshares Meeting ” has the meaning set forth in Section 6.02.

“ Vision Bancshares Off Balance Sheet Transaction ” has the meaning set forth in Section 5.02(u).

“ Vision Bancshares Preferred Stock ” means the preferred stock, $1.00 par value per share, of Vision Bancshares.

“ Vision Bancshares Real Properties ” has the meaning set forth in Section 5.02(y).

“ Vision Bancshares Recommendation ” has the meaning set forth in Section 6.02.

“ Vision Bancshares SEC Documents ” has the meaning set forth in Section 5.02(gg).

“ Vision Bancshares Stock Option ” has the meaning set forth in Section 3.08.

“ Vision Bancshares Stock Plans ” means the equity-based plans and agreements of Vision Bancshares and its Subsidiaries pursuant to which Rights to purchase Vision Bancshares Common Stock are outstanding immediately prior to the Effective Time pursuant to the Vision Bancshares, Inc. Incentive Stock Compensation Plan, as amended, and the Vision Bancshares, Inc. Director Stock Plan, as amended.

 

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“ Vision Bancshares Stock Subscription ” means the subscription of a participant in the Vision Bancshares ESPP to purchase shares of Vision Bancshares Common Stock.

“ Vision Florida ” means Vision Bank, a Florida state bank which is a wholly-owned subsidiary of Vision Bancshares.

ARTICLE II - The Merger

2.01 The Merger . Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, (a) Vision Bancshares shall be merged with and into Park, and (b) the separate corporate existence of Vision Bancshares shall cease and Park shall survive and continue to exist as an Ohio corporation (Park, as the surviving corporation in the Merger, sometimes being referred to herein as the “ Surviving Corporation ”). At the Effective Time, the Park Articles, as in effect immediately prior to the Effective Time, shall be the articles of incorporation of the Surviving Corporation, until amended in accordance with applicable Law. At the Effective Time, the Park Regulations, as in effect immediately prior to the Effective Time, shall be the regulations of the Surviving Corporation until amended in accordance with applicable Law. At the Effective Time, the individuals serving as directors of Park immediately prior to the Effective Time shall become directors of the Surviving Corporation and each such individual shall serve as a director of the Surviving Corporation for the balance of the term for which such individual was elected a director of Park; provided, however, that Park shall, subject to the requirements of applicable Law and the provisions of the Governing Documents of Park, take all actions necessary to cause J. Daniel Sizemore to become a director of the Surviving Corporation at the Effective Time and he shall serve as a director of the Surviving Corporation in the class of directors whose terms expire at the annual meeting of the shareholders of the Surviving Corporation to be held in 2009. Each director of the Surviving Corporation shall serve as such until his or her successor is duly elected and qualified in the manner provided in the articles of incorporation and regulations of the Surviving Corporation or as otherwise provided by applicable Law or until his or her earlier death, resignation or removal in the manner provided in the articles of incorporation and regulations of the Surviving Corporation or as otherwise provided by applicable Law. At the Effective Time, each individual who is an officer of Park immediately prior to the Effective Time shall become an officer of the Surviving Corporation holding the same office in the Surviving Corporation, in accordance with the regulations thereof, as held with Park immediately prior to the Effective Time. Park may at any time prior to the Effective Time change the method of effecting the Merger (including, without limitation, the provisions of this Article II) if and to the extent Park deems such change to be necessary, appropriate or desirable; provided, however , that no such change shall (i) alter or change the amount or kind of consideration to be issued to holders of Vision Bancshares Common Stock as provided for in Article III of this Agreement (subject to adjustment as provided in Sections 3.01 and 3.02), (ii) adversely affect the treatment of the Merger as a reorganization described in Section 368(a) of the Code, or (iii) materially impede or delay consummation of the transactions contemplated by this Agreement. If Park makes such an election, Park and Vision Bancshares shall execute an appropriate amendment to this Agreement in order to reflect such election.

2.02 Effectiveness of the Merger . Subject to the satisfaction or waiver of the conditions set forth in Article VII, the Merger shall become effective upon the latest to occur of the following: (a) the filing of a certificate of merger with the Ohio SOS in accordance with the OGCL; (b) the filing of articles of merger with the Alabama SOS in accordance with the Alabama Code; or (c) such later date and time as may be agreed to in writing by Park and Vision Bancshares and so provided in the certificate of merger and articles of merger filed as set forth above (the time the Merger becomes effective being referred to as the “ Effective Time ”).

 

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2.03 Closing; Closing Date .

(a) Subject to the satisfaction or waiver of the conditions set forth in Article VII, the closing of the transactions contemplated by this Agreement (the “ Closing ”) shall be held at the offices of Vorys, Sater, Seymour and Pease LLP, 52 East Gay Street, Columbus, Ohio 43215 or such other location to which the parties agree in writing, commencing at 10:00 a.m., local time, on (i) the date designated by Park that is within 30 days following the satisfaction or waiver of the conditions set forth in Article VII, other than those conditions that by their nature are to be satisfied at the Closing; provided, however , that no such election shall cause the Closing Date to fall after the date specified in Section 8.01(c) of this Agreement or after the date or dates on which any Governmental Authority or Regulatory Authority approval or any extension thereof expires; or (ii) such other date to which the parties agree in writing. The date designated pursuant to this Section 2.03(a) being referred to as the “ Closing Date ”).

(b) At the Closing, Park shall cause all of the following to be delivered to Vision Bancshares:

(i) Certificates . The certificates of Park contemplated by Sections 7.02(a) and 7.02(b) of this Agreement; and

(ii) Resolutions . Copies of all resolutions adopted by the Park Board (or any committee thereof), approving and adopting this Agreement and authorizing the consummation of the transactions described in this Agreement, accompanied by a certificate of the secretary of Park, dated as of the Closing Date, and certifying (A) the date and manner of adoption of each resolution and (B) that each such resolution is in full force and effect, without amendment or repeal, as of the Closing Date.

(c) At the Closing, Vision Bancshares shall cause all of the following to be delivered to Park:

(i) Certificates . The certificates of Vision Bancshares contemplated by Sections 7.03(a) and 7.03(b) of this Agreement;

(ii) Resolutions . Copies of all resolutions adopted by the Vision Bancshares Board (or any committee thereof) and the shareholders of Vision Bancshares, approving and adopting this Agreement and authorizing the consummation of the transactions described in this Agreement, accompanied by a certificate of the secretary of Vision Bancshares, dated as of the Closing Date, and certifying (A) the date and manner of the adoption of each such resolution and (B) that each such resolution is in full force and effect, without amendment or repeal, as of the Closing Date; and

(iii) FIRPTA Certification . A statement executed on behalf of Vision Bancshares, in the form attached hereto as Exhibit A , dated as of the Closing Date, certifying that the shares of Vision Bancshares Common Stock do not represent United States real property interests within the meaning of Treasury Department regulations (the “ Treasury Regulations ”) Sections 1.897-2(b)(1) and (h).

2.04 Effects of the Merger . At the Effective Time, the Merger shall have the effects prescribed in the OGCL and the Alabama Code.

 

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ARTICLE III - Consideration; Exchange Procedures

3.01 Merger Consideration .

(a) As used herein, the term “ Merger Consideration ” per share of Vision Bancshares Common Stock shall mean the consideration described in paragraph (i) or (ii) below, as provided in Section 3.02 and subject to adjustment as provided in Section 3.01(b):

(i) 0.2475 Park Common Shares, which is the number of Park Common Shares (to the nearest ten thousandth of a share) equal to the quotient of $25.00 divided by the Park Exchange Value (the “ Stock Exchange Ratio ”) to be exchanged for each share of Vision Bancshares Common Stock subject to this election and owned by the holder thereof as of the Effective Time (the “ Stock Election ”); or

(ii) $25.00 in cash for each share of Vision Bancshares Common Stock subject to this election and owned by the holder thereof as of the Effective Time (the “ Cash Election ”).

Subject to adjustment as provided in Section 3.01(b), each holder of Vision Bancshares Common Stock shall be permitted to make any combination of the Stock Election and the Cash Election in whole share increments with respect to such holder’s shares of Vision Bancshares Common Stock.

(b) (i) Subject to adjustment for cash paid in lieu of fractional Park Common Shares in accordance with Section 3.04, 50% of the shares of Vision Bancshares Common Stock issued and outstanding as of the Effective Time shall be exchanged for Park Common Shares pursuant to the Stock Election, and 50% of the shares of Vision Bancshares Common Stock issued and outstanding as of the Effective Time shall be exchanged for cash in the amount of $25.00 per share pursuant to the Cash Election (treating all holders of shares of Vision Bancshares Common Stock who exercise dissenters’ rights pursuant to Article 13 of the Alabama Code as having made the Cash Election).

(ii) In the event that holders of shares of Vision Bancshares Common Stock representing more than 50% of the total number of shares of Vision Bancshares Common Stock issued and outstanding as of the Effective Time make the Cash Election and exercise dissenters’ rights pursuant to Article 13 of the Alabama Code with respect to such shares of Vision Bancshares Common Stock, a number of shares of Vision Bancshares Common Stock subject to the Cash Election shall be converted to shares of Vision Bancshares Common Stock subject to the Stock Election so that the total number of shares of Vision Bancshares Common Stock subject to the Cash Election and with respect to which dissenters’ rights have been exercised pursuant to Article 13 of the Alabama Code is equal to 50% of the total number of shares of Vision Bancshares Common Stock issued and outstanding as of the Effective Time. Except with respect to holders of shares of Vision Bancshares Common Stock who exercise dissenters’ rights pursuant to Article 13 of the Alabama Code, each holder of Vision Bancshares Common Stock that has made the Cash Election shall be subject to this conversion with respect to a number of such holder’s shares of Vision Bancshares Common Stock subject to the Cash Election equal to the product of: (A) the total number of shares of Vision Bancshares Common Stock subject to the conversion from the Cash Election to the Stock Election (which number shall exclude shares of Vision Bancshares Common Stock as to which the holders have exercised dissenters’ rights pursuant to Article 13 of the Alabama Code),

 

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multiplied by (B) the ratio of (1) the number of such holder’s shares of Vision Bancshares Common Stock subject to the Cash Election, divided by (2) the total number of shares of Vision Bancshares Common Stock as to which the holders have made the Cash Election (which number shall exclude shares of Vision Bancshares Common Stock as to which the holders have exercised dissenters’ rights pursuant to Article 13 of the Alabama Code).

(iii) In the event that holders of shares of Vision Bancshares Common Stock representing more than 50% of the total number of shares of Vision Bancshares Common Stock issued and outstanding as of the Effective Time make the Stock Election, a number of shares of Vision Bancshares Common Stock subject to the Stock Election shall be converted to shares of Vision Bancshares Common Stock subject to the Cash Election so that the total number of shares of Vision Bancshares Common Stock subject to the Stock Election (including shares of Vision Bancshares ISO Common Stock as to which the holders have made a separate Stock Election as provided in Section 3.02(g)) is equal to 50% of the total number of shares of Vision Bancshares Common Stock issued and outstanding as of the Effective Time. Except with respect to holders of Vision Bancshares ISO Common Stock who make a separate Stock Election with respect to such shares as provided in Section 3.02(g), each holder of shares of Vision Bancshares Common Stock that has made the Stock Election shall be subject to this conversion with respect to a number of such holder’s shares of Vision Bancshares Common Stock subject to the Stock Election equal to the product of: (A) the total number of shares of Vision Bancshares Common Stock subject to the conversion from the Stock Election to the Cash Election (which number shall exclude shares of Vision Bancshares ISO Common Stock as to which the holders have made a separate Stock Election as provided in Section 3.02(g)), multiplied by (B) the ratio of (1) the number of such holder’s shares of Vision Bancshares Common Stock subject to the Stock Election, divided by (2) the total number of shares of Vision Bancshares Common Stock as to which the holders have made the Stock Election (which number shall exclude shares of Vision Bancshares ISO Common Stock as to which the holders have made a separate Stock Election as provided in Section 3.02(g)).

3.02 Conversion of Shares.

(a) Outstanding Shares of Vision Bancshares Common Stock . Subject to the provisions of this Agreement, at the Effective Time, automatically by virtue of the Merger and without any action on the part of Vision Bancshares or the holders of record of Vision Bancshares Common Stock, each share of Vision Bancshares Common Stock issued and outstanding immediately prior to the Effective Time (other than shares of Vision Bancshares Common Stock to be cancelled or converted to treasury shares of the Surviving Corporation in accordance with Section 3.02(b) and Vision Bancshares Dissenting Shares) shall be converted into and shall represent the right to receive, upon surrender of the Old Certificate representing such share of Vision Bancshares Common Stock, the Merger Consideration.

(b) Treasury Stock and Shares of Vision Bancshares Common Stock Held by Park . At the Effective Time, all shares of Vision Bancshares Common Stock, if any, held by Vision Bancshares as Treasury Stock immediately prior to the Effective Time shall, by virtue of the Merger, be cancelled and retired and shall cease to exist, and no Park Common Shares or other consideration shall be delivered in exchange therefor. At the Effective Time, all shares of Vision Bancshares Common Stock, if any, that are beneficially owned by Park immediately prior to the Effective Time, upon conversion into Park Common Shares by virtue of the Merger, shall become treasury shares of the Surviving Corporation.

 

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(c) Outstanding Park Common Shares . All Park Common Shares, if any, that are owned directly by Vision Bancshares immediately prior to the Effective Time shall become treasury shares of the Surviving Corporation. Each other Park Common Share issued and outstanding immediately prior to the Effective Time shall continue to be issued and outstanding and unaffected by the Merger.

(d) Procedures for Election . An election form and other appropriate transmittal materials in such form as Park and Vision Bancshares shall mutually agree (the “ Election Form/Letter of Transmittal ”) shall be mailed to shareholders of Vision Bancshares prior to the Election Period (defined below). The Election Form/Letter of Transmittal will permit holders of shares of Vision Bancshares Common Stock to elect, subject to the provisions of Sections 3.01 and 3.02, the form of Merger Consideration set forth in Section 3.01(a) (the “ Election ”) that they choose to receive in the Merger, will specify that delivery will be effected, and risk of loss and title to Old Certificates (as defined in Section 3.05(c)) will pass, only upon proper delivery of the Old Certificates to the Exchange Agent and will include instructions and procedures for surrendering Old Certificates in exchange for New Certificates (as defined in Section 3.05(c)). The “ Election Period ” shall be such period of time as Park and Vision Bancshares shall mutually agree, within which holders of Vision Bancshares Common Stock may validly make an Election, occurring between (A) the date of the mailing by Vision Bancshares of the Proxy Statement for the Vision Bancshares Meeting at which this Agreement is presented for approval by the Vision Bancshares shareholders and (B) the Election Deadline. The “ Election Deadline ” shall be the time, specified by Park after consultation with Vision Bancshares, on the last day of the Election Period, which shall be the second trading day prior to the Effective Time.

(e) Perfection of the Election . An Election shall be considered to have been validly made by a holder of Vision Bancshares Common Stock only if (i) the Exchange Agent shall have received an Election Form/Letter of Transmittal properly completed and executed by such holder of Vision Bancshares Common Stock, accompanied by a certificate or certificates representing the shares of Vision Bancshares Common Stock as to which such Election is being made, duly endorsed in blank or otherwise in form acceptable for transfer on the books of Vision Bancshares, or containing an appropriate guaranty of delivery in the form customarily used in transactions of this nature from a member of a national securities exchange or a member of the NASD or a commercial bank or trust company in the United States and (ii) such Election Form/Letter of Transmittal and such certificate(s) or such guaranty of delivery shall have been received by the Exchange Agent prior to the Election Deadline.

(f) Withdrawal of Election . Any holder of shares of Vision Bancshares Common Stock or any other Person to whom the subject shares of Vision Bancshares Common Stock are subsequently transferred may at any time prior to the Election Deadline revoke the Election and either (i) submit a new Election Form/Letter of Transmittal in accordance with the procedures in Section 3.02(e) or (ii) withdraw the certificate(s) for shares of Vision Bancshares Common Stock deposited therewith by providing written notice that is received by the Exchange Agent by 5:00 p.m., local time for the Exchange Agent, on the business day prior to the Election Deadline. All Elections will be deemed to be revoked if this Agreement has been terminated in accordance with its terms.

(g) Vision Bancshares ISO Common Stock . Any holder of shares of Vision Bancshares Common Stock who after the date of this Agreement has acquired such shares of Vision Bancshares Common Stock pursuant to the exercise of an “incentive stock option,” as defined in Section 422 of the Code ( “ Vision Bancshares ISO Common Stock ” ), shall automatically be deemed to have made the Stock Election in Section 3.01(a)(i) for all purposes if such holder submits the certificates for such shares of Vision Bancshares ISO Common Stock as a separate Stock Election for such shares. Nothing contained in this Section 3.02(g) shall be interpreted or construed to prevent any holder of Vision Bancshares ISO Common Stock from making the Election described in Section 3.02(d) with respect to any share of Vision Bancshares Common Stock which is not a share of Vision Bancshares ISO Common Stock. Certificates

 

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representing shares of Vision Bancshares ISO Common Stock shall be marked with a legend indicating their status as shares of Vision Bancshares ISO Common Stock.

(h) No Election . Any holder of Vision Bancshares Common Stock as of the Effective Time who does not submit a properly completed and signed Election Form/Letter of Transmittal that is received by the Exchange Agent at or prior to the Election Deadline, will be deemed to have made an election under Section 3.01(a) for all purposes herein for that form of Merger Consideration as to which less than 50% of the total number of shares of Vision Bancshares Common Stock has been made. Park will have the discretion to disregard immaterial defects in an Election Form/Letter of Transmittal. If Park or its designee reasonably determines that any purported Stock Election or Cash Election was not properly made, such purported Election will be deemed to be of no force and effect and the holder making such Election will be deemed to have made an election in accordance with the first sentence of this Section 3.02(h).

3.03 Rights as Shareholders; Stock Transfers . At the Effective Time, the shares of Vision Bancshares Common Stock shall no longer be outstanding and shall automatically be canceled and cease to exist and holders of Vision Bancshares Common Stock shall cease to be, and shall have no rights as, shareholders of Vision Bancshares, other than to receive the Merger Consideration provided under this Article III and dissenters’ rights under Article 13 of the Alabama Code in the case of Vision Bancshares Dissenting Shares. After the Effective Time, there shall be no transfers on the stock transfer books of Vision Bancshares or the Surviving Corporation of any shares of Vision Bancshares Common Stock (other than Vision Bancshares Dissenting Shares, if applicable).

3.04 Fractional Shares . Notwithstanding any other provision hereof, no fractional Park Common Shares and no certificates or scrip therefor, or other evidence of ownership thereof, will be issued in the Merger and no Park dividend or other distribution or stock split or combination will relate to any fractional Park Common Share, and such fractional Park Common Shares will not entitle the owner thereof to vote or to any rights of a security holder of Park. Instead, Park shall pay to each holder of Vision Bancshares Common Stock who would otherwise be entitled to a fractional Park Common Share (after taking into account all Old Certificates delivered by such holder) an amount in cash (without interest) determined by multiplying such fractional Park Common Share to which the holder would be entitled by the Park Exchange Value.

3.05 Exchange Procedures .

(a) Establishment of Exchange Fund . The First-Knox National Bank of Mount Vernon, Mount Vernon, Ohio will act as agent (the “ Exchange Agent ”) for purposes of conducting the exchange and payment procedures as described in this Article III. Park shall provide to the Exchange Agent the aggregate number of Park Common Shares issuable pursuant to Section 3.01(a), the aggregate amount of cash payable pursuant to Sections 3.01(a), 3.01(b) and 3.04 and the amount of all other cash payable in respect of the Merger, if any, on an “as needed” basis to the Exchange Agent, all of which shall be held by the Exchange Agent in trust for the holders of Vision Bancshares Common Stock (collectively, the “ Exchange Fund ”). The Exchange Agent shall distribute Park Common Shares and make payment of such cash as provided herein. The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Park Common Shares held by it from time to time hereunder, except that it shall receive and hold in trust for the recipients of Park Common Shares until distributed thereto pursuant to the provisions of this Agreement all dividends or other distributions paid or distributed with respect to such Park Common Shares for the account of the Persons entitled thereto. The Exchange Fund shall not be used for any purpose other than as set forth in this Section 3.05.

 

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(b) No Interest . No interest will be paid on any cash, including any cash to be paid in lieu of fractional Park Common Shares or in respect of dividends or distributions, that any Person shall be entitled to receive pursuant to this Article Three.

(c) Surrender Procedures . Promptly after the Effective Time, Park shall cause the Exchange Agent to mail to each holder of record of a certificate representing shares of Vision Bancshares Common Stock (an “ Old Certificate ”) that was converted pursuant to Section 3.02, but that was not deposited with the Exchange Agent pursuant to Section 3.02(d), both (i) a form of letter of transmittal (the “ Letter of Transmittal ”) specifying that delivery will be effected, and risk of loss and title to the Old Certificates will pass, only upon proper delivery of the Old Certificates to the Exchange Agent and (ii) instructions and procedures for surrendering Old Certificates in exchange for certificates representing Park Common Shares (“ New Certificates ”). Upon proper surrender of an Old Certificate for cancellation to the Exchange Agent, together with such Letter of Transmittal, duly executed, following the Effective Time, the holder of such Old Certificate shall receive within five business days of such surrender in exchange therefor (A) a New Certificate representing that number of whole Park Common Shares that such holder has the right to receive pursuant to the provisions of this Article III, and/or (B) a check in an amount equal to the sum of the cash to be paid to such holder as part of the Merger Consideration, the cash to be paid in lieu of any fractional Park Common Shares to which such holder is entitled pursuant to Section 3.04 and/or the cash to be paid in respect of any dividends or distributions with respect to Park Common Shares to which such holder may be entitled pursuant to Section 3.06, after giving effect to any required tax withholdings, and the Old Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of shares of Vision Bancshares Common Stock that is not registered in the transfer records of Vision Bancshares, a New Certificate representing the proper number of Park Common Shares may be issued, and/or the cash to be paid as part of the Merger Consideration, in lieu of any fractional Park Common Shares and/or in respect of any dividends or distributions with respect to Park Common Shares may be paid pursuant to Section 3.06, to a transferee if the Old Certificate 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. Until surrendered as contemplated by this Section 3.05(c), each Old Certificate will be deemed at any time after the Effective Time to represent only the right to receive upon such surrender a New Certificate and/or a check in an amount equal to the sum of the cash to be paid as part of the Merger Consideration, the cash to be paid in lieu of any fractional Park Common Shares and/or the cash to be paid in respect of any dividends or distributions with respect to Park Common Shares to which the holder may be entitled pursuant to Section 3.06 hereof.

(d) Lost, Stolen or Destroyed Vision Bancshares Old Certificates . If any Old Certificate has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Old Certificate to be lost, stolen or destroyed and, if required by Park, the posting by such Person of a bond in such reasonable amount as Park may direct as indemnity against any claim that may be made against it with respect to such Old Certificate, the Exchange Agent shall deliver in exchange for such lost, stolen or destroyed Old Certificate (i) the number of Park Common Shares to which such Person is entitled pursuant to Section 3.01(a) with respect to the shares of Vision Bancshares Common Stock formerly represented thereby, and/or (ii) a check in an amount equal to the sum of the cash to be paid to such Person as part of the Merger Consideration, the cash to be paid in lieu of any fractional Park Common Shares to which such Person is entitled pursuant to Section 3.04 and/or the cash to be paid in respect of any dividends or distributions with respect to Park Common Shares to which such Person may be entitled pursuant to Section 3.06.

(e) Termination of Exchange Fund . Any portion of the Exchange Fund delivered to the Exchange Agent by Park pursuant to Section 3.05(a) that remains undistributed to the shareholders of Vision Bancshares for six months after the Effective Time shall be delivered to the Surviving Corporation, upon demand, and any shareholders of Vision Bancshares who have not complied with this

 

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Article III by such time shall thereafter look only to the Surviving Corporation for payment of the Merger Consideration, any cash in lieu of a fractional Park Common Share interest, and any dividends or distributions with respect to Park Common Shares payable in accordance with Section 3.06, in each case without interest.

(f) No Liability . None of Park, Vision Bancshares, the Exchange Agent or the Surviving Corporation shall be liable to any former holder of Vision Bancshares Common Stock for any payment of the Merger Consideration, any cash in lieu of a fractional Park Common Share interest, or any dividends or distributions with respect to Park Common Shares payable in accordance with Section 3.06, delivered to a public official if required by any applicable abandoned property, escheat or similar law.

(g) Withholding Rights . Park or the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Vision Bancshares Common Stock such amounts as Park or the Exchange Agent is required to deduct and withhold with respect to the making of such payment under the Code and Treasury Regulations, or any other provision of domestic or foreign tax Law (whether national, federal, state, provincial, local or otherwise). To the extent that amounts are so withheld and paid over to the appropriate taxing authority by Park or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Vision Bancshares Common Stock in respect of which such deduction and withholding were made.

(h) Waiver . The Surviving Corporation may from time to time, in the case of one or more Persons, waive one or more of the rights provided to it in this Article III to withhold certain payments, deliveries and distributions; and no such waiver shall constitute a waiver of its rights thereafter to withhold any such payment, delivery or distribution in the case of any Person.

3.06 Park Dividends and Distributions . Whenever a dividend or other distribution is declared by Park on the Park Common Shares, the record date for which is at or after the Effective Time, the declaration shall include dividends or other distributions on all Park Common Shares issuable pursuant to this Agreement, but no dividend or other distribution payable to the holders of record of Park Common Shares as of any time subsequent to the Effective Time shall be delivered to the holder of any Old Certificate until such holder surrenders such Old Certificate for exchange as provided in this Article III. Upon surrender of such Old Certificate, both the Merger Consideration (without interest) and any declared and unpaid dividends payable under this Section 3.06 (without interest) shall be delivered and paid with respect to the shares of Vision Bancshares Common Stock represented by such Old Certificate.

3.07 Anti-Dilution Provisions . In the event Park changes (or establishes a record date for changing) the number of Park Common Shares issued and outstanding between the date hereof and the Effective Time as a result of a stock split, stock dividend, recapitalization, reclassification, split up, combination, exchange of shares, readjustment or similar transaction with respect to the outstanding Park Common Shares and the record date therefor shall be prior to the Effective Time, the Stock Exchange Ratio shall be proportionately adjusted.

3.08 Vision Bancshares Stock Options; Vision Bancshares ESPP .

(a) Each outstanding option to purchase shares of Vision Bancshares Common Stock under the Vision Bancshares Stock Plans whether vested or unvested, exercisable or un-exercisable (each, a “ Vision Bancshares Stock Option ”) that has not been exercised and paid for in full in a manner permitted under the terms of the applicable Vision Bancshares Stock Plan on or before the Election Deadline shall be surrendered, cancelled and extinguished and converted into the right to receive an amount of cash equal to (i) the product of $25.00 multiplied by the number of shares of Vision Bancshares Common

 

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Stock subject to the portion of such Vision Bancshares Stock Option which has not been exercised on or before the Election Deadline, minus (ii) the aggregate exercise price for the shares of Vision Bancshares Common Stock subject to the portion of such Vision Bancshares Stock Option which has not been exercised on or before the Election Deadline. Prior to the Election Deadline, Vision Bancshares shall take all actions necessary to cause any provision under plans, programs or arrangements providing for the issuance or grant of any interest in respect of the capital stock of Vision Bancshares or any of its Subsidiaries to terminate as of the Election Deadline, and Vision Bancshares shall ensure that following the Election Deadline, no Employee, Consultant or Director shall have any Rights, other than the right to receive the cash payment described in the first sentence of this Section 3.08(a), in respect of shares of Vision Bancshares Common Stock or any other equity interest in Vision Bancshares under the Vision Bancshares Stock Plans or any other plans, programs or arrangements providing for the issuance or grant of any other Right in respect of the capital stock of Vision Bancshares or any Subsidiary.

(b) Prior to the Election Deadline, Vision Bancshares shall take all actions necessary pursuant to the terms of the Vision Bancshares ESPP to terminate the Vision Bancshares ESPP (and all outstanding Vision Bancshares Stock Subscriptions and other Rights thereunder) effective as of the Election Deadline. Any Employee who is a participant in the Vision Bancshares ESPP and who has not paid the entire balance due for any shares of Vision Bancshares Common Stock for which such Employee has subscribed pursuant to the terms of the Vision Bancshares ESPP may pay such balance in full on or prior to the Election Deadline and receive the applicable shares of Vision Bancshares Common Stock. The failure of a participating Employee to pay such balance in full on or prior to the Election Deadline will be treated as a cancellation of the Employee’s Vision Bancshares Stock Subscription(s) and Vision Bancshares will refund (without interest) all amounts the Employee has had withheld or has paid with respect to the canceled Vision Bancshares Stock Subscription(s).

(c) Prior to the Election Deadline, the Vision Bancshares Board (or, if appropriate, any committee administering the Vision Bancshares Stock Plans and/or the Vision Bancshares ESPP) shall adopt such resolutions and take such actions as are necessary to carry out the terms of this Section 3.08 (without the creation of any additional liability for Vision Bancshares or any of its Subsidiaries).

3.09 Vision Bancshares Dissenting Shares . Anything contained in this Agreement or elsewhere to the contrary notwithstanding, if any holder of an outstanding share of Vision Bancshares Common Stock as of the Effective Time seeks relief as a dissenting shareholder under Article 13 of the Alabama Code (a “ Vision Bancshares Dissenting Share ”), then such Vision Bancshares Dissenting Share shall not be converted into the right to receive the Merger Consideration, and instead:

(a) Each such Vision Bancshares Dissenting Share shall nevertheless be deemed to be extinguished at the Effective Time as provided elsewhere in this Agreement; and

(b) Each holder perfecting such dissenters’ rights shall thereafter have only such rights (and shall have such obligations) as are provided in Article 13 of the Alabama Code, and the Surviving Corporation shall be required to deliver only such cash payments to which the Vision Bancshares Dissenting Shares are entitled pursuant to Article 13 of the Alabama Code; provided, however , that if any such Person shall forfeit such right to payment of the fair value under Article 13 of the Alabama Code, each such holder’s Vision Bancshares Dissenting Shares shall thereupon be deemed to have been converted as of the Effective Time into the right to receive the Merger Consideration, as shall have been designated by each such holder, subject to Section 3.01.

Any Election Form/Letter of Transmittal or Letter of Transmittal submitted by a holder of Vision Bancshares Dissenting Shares shall be invalid, unless and until the demand for payment of the fair value

 

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of the shares of Vision Bancshares Common Stock shall have been or is deemed to have been withdrawn or forfeited.

Any payments made in respect of Vision Bancshares Dissenting Shares shall be made by Park.

ARTICLE IV - Actions Pending Acquisition

4.01 Forbearances of Vision Bancshares . From the date of this Agreement until the Effective Time, except as expressly contemplated or permitted by this Agreement and/or Previously Disclosed in the Vision Bancshares Disclosure Schedule, without the prior written consent of Park, which consent shall not be unreasonably withheld or delayed, Vision Bancshares will not, and will cause its Subsidiaries not to:

(a) Ordinary Course . Conduct the business of Vision Bancshares and its Subsidiaries other than in the ordinary and usual course consistent with past practice or fail to use reasonable efforts to preserve intact their respective business organizations and assets and maintain their respective rights, franchises and existing relations with customers, suppliers, employees and business associates, or voluntarily take any action which, at the time taken, has or is reasonably likely to have an adverse affect upon Vision Bancshares’ ability to perform any of its obligations under this Agreement, or prevent or materially delay the consummation of the transactions contemplated by this Agreement, or enter into any new line of business or materially change its lending, investment, underwriting, risk, asset liability management or other banking and operating policies, except as required by applicable Law or policies imposed by any Governmental Authority or Regulatory Authority.

(b) Capital Stock . Other than pursuant to Vision Bancshares Stock Options and Vision Bancshares Stock Subscriptions outstanding as of the date of this Agreement and Previously Disclosed in the Vision Bancshares Disclosure Schedule: (i) issue, sell or otherwise permit to become outstanding, or authorize the creation of, any additional shares of Vision Bancshares Common Stock or any Rights including, without limitation, under the Vision Bancshares Stock Plans or under the Vision Bancshares ESPP; (ii) enter into any agreement with respect to the foregoing; (iii) permit any additional shares of Vision Bancshares Common Stock to become subject to new grants of stock options, stock subscriptions, other Rights or similar stock-based employee rights, including, without limitation, under the Vision Bancshares Stock Plans or under the Vision Bancshares ESPP, except as Previously Disclosed in the Vision Bancshares Disclosure Schedule; (iv) effect any recapitalization, reclassification, stock split, or like change in capitalization; or (v) enter into, or take any action to cause any holders of shares of Vision Bancshares Common Stock to enter into, any agreement, understanding or commitment relating to the right of holders of shares of Vision Bancshares Common Stock to vote any shares of Vision Bancshares Common Stock, or cooperate in the formation of any voting trust or similar arrangement relating to such shares of Vision Bancshares Common Stock.

(c) Dividends, Etc. (i) Make, declare, pay or set aside for payment any dividend or distribution on any shares of its capital stock other than dividends from one of the Subsidiaries of Vision Bancshares to the parent of such Subsidiary, directly or indirectly; (ii) otherwise declare or make any distribution on any shares of its capital stock; or (iii) combine, redeem, reclassify, purchase or otherwise acquire, any shares of its capital stock.

(d) Compensation; Employment Agreements; Etc. Enter into, amend, modify, renew or terminate any employment, consulting, severance, change in control or similar agreements or arrangements with any Director, Officer, Employee or Consultant (other than the agreements described in Section 6.16 or as Previously Disclosed in the Vision Bancshares Disclosure Schedule), hire or retain any

 

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full-time employee or consultant, other than as replacements for positions then existing, or grant any salary or wage increase or bonus or increase any employee benefit (including incentive or bonus payments), except (i) for normal individual increases in compensation to Employees in the ordinary and usual course of business consistent with past practice, (ii) for other changes that are required by applicable Law, or (iii) to satisfy contractual obligations existing as of the date hereof which have been Previously Disclosed in the Vision Bancshares Disclosure Schedule; provided, however, that in 2007, Vision Bancshares shall be permitted to pay to J. Daniel Sizemore a one-time special bonus in the amount of $300,000 in addition to any other bonuses to which Mr. Sizemore may be entitled under the terms of the Compensation and Benefit Plans.

(e) Benefit Plans . Enter into, establish, adopt, amend, modify or terminate (except (i) as may be required by applicable Law, (ii) to satisfy contractual obligations existing as of the date hereof which have been Previously Disclosed in the Vision Bancshares Disclosure Schedule or (iii) as contemplated by this Agreement) any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement (including any Compensation and Benefit Plan), or any trust agreement (or similar arrangement) related thereto, in respect of any Director, Officer, Employee or Consultant (or any dependent or beneficiary of any of the foregoing Persons), or take any action to accelerate the vesting or exercisability of, or the payment or distribution with respect to, stock options, restricted stock or other compensation or benefits payable thereunder, other than pursuant to this Agreement, or allow for the commencement of any new offering periods under the Vision Bancshares ESPP.

(f) Dispositions . Sell, transfer, mortgage, pledge or subject to any Lien or otherwise encumber or otherwise dispose of any of its assets (tangible or intangible), deposits, business or properties except in the ordinary and usual course of business for full and fair consideration actually received.

(g) Acquisitions . Acquire (other than by way of foreclosures or acquisitions of control in a bona fide fiduciary capacity or in satisfaction of debts previously contracted in good faith, in each case in the ordinary and usual course of business consistent with past practice) all or any portion of, the assets, business, deposits or properties of any other Person, or acquire mortgage servicing rights, except in connection with existing correspondent lending relationships in the ordinary and usual course of business consistent with past practice.

(h) Governing Documents . Amend or propose to amend the Vision Bancshares Articles, the Vision Bancshares Bylaws or similar Governing Documents of Vision Bancshares, or the Governing Documents of any of the Subsidiaries of Vision Bancshares.

(i) Accounting Methods . Implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory accounting principles.

(j) Contracts . Except in the ordinary and usual course of business consistent with past practice or in connection with this Agreement or the transactions contemplated by this Agreement, enter into or terminate any Contract which would be required to be disclosed pursuant to Section 5.03(k) or which would impair the ability of Vision Bancshares to perform its obligations under this Agreement or prevent or materially delay the consummation of the transactions contemplated by this Agreement, amend or modify in any material respect any of its existing Contracts, or enter into any new Contract that would be required to be disclosed pursuant to the standards set forth in Section 5.03(k).

(k) Claims . Except in the ordinary course of business consistent with past practice or in connection with this Agreement or the transactions contemplated by this Agreement, settle any claim, action or proceeding which, individually or in the aggregate for all such settlements, is material to Vision

 

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Bancshares or any of its Subsidiaries or has a material affect on Vision Bancshares or any of its Subsidiaries.

(l) Adverse Actions . Agree, commit or take any action while knowing that such action would, or is reasonably likely to, prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code; or knowingly take any action that is intended or is reasonably likely to result in (i) any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time at or prior to the Effective Time, (ii) any of the conditions to the Merger set forth in Article VII not being satisfied, or (iii) a material violation of any provision of this Agreement except, in each case, as may be required by applicable Law or by any Governmental Authority or Regulatory Authority.

(m) Risk Management . Except pursuant to applicable Law or as required by any Governmental Authority or Regulatory Authority, (i) implement or adopt any material change in its credit risk and interest rate risk management and other risk management policies, procedures or practices; (ii) fail to follow its existing policies or practices with respect to managing its exposure to interest rate and other risk; or (iii) fail to use commercially reasonable means to avoid any material increase in its aggregate exposure to interest rate risk and other risk.

(n) Borrowings . Borrow or agree to borrow any funds, including but not limited to pursuant to repurchase transactions, or directly or indirectly guarantee or agree to guarantee any obligations of others, except, in each case, in the ordinary and usual course of business and with a final maturity of less than one year.

(o) Capital Expenditures . Make any capital expenditure or commitments with respect thereto in an amount in excess of $75,000 for any item or project, or $300,000 in the aggregate for any related items or projects.

(p) New Offices, Office Closures, Etc . Close or relocate any offices at which business is conducted or open any new offices or ATMs.

(q) Taxes . (i) Fail to prepare and file or cause to be prepared and filed in a timely manner consistent with past practice all Tax Returns (whether separate or consolidated, combined, group or unitary Tax Returns that include Vision Bancshares or any of its Subsidiaries) that are required to be filed (with extensions) on or before the Effective Time; provided, however , that Park shall have a reasonable opportunity, beginning at least 15 days prior to the due date thereof, to review and comment on the form and substance of any Tax Returns relating to U.S. federal income tax, Alabama state franchise or commercial activity tax or Florida state franchise or commercial activity tax, (ii) fail to pay any Tax shown, or required to be shown, on any such Tax Return, or (iii) make, change or revoke any election in respect of Taxes, change an annual accounting period, consent to any waiver or extension of the limitation period applicable to any Tax claim or assessment, enter into any closing agreement, settle any claim or assessment in respect of Taxes or offer or agree to do any of the foregoing or surrender its rights to do any of the foregoing or to claim any refund in respect of Taxes or file any amended Tax Return.

(r) Maintenance of Properties and Facilities . Fail to use their commercially reasonable efforts to maintain and keep their respective properties and facilities in their present condition and working order, ordinary wear and tear excepted;

(s) Perform Obligations . Fail to perform all of their respective obligations under all Contracts;

 

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(t) Maintain Insurance Coverage . Fail to maintain insurance coverage with reputable insurers, which in respect of insurers, amounts, premiums, types and risks insured, were maintained by them at June 30, 2006, and upon the renewal or termination of such insurance, fail to use their commercially reasonable efforts to renew or replace such insurance coverage with reputable insurers, which in respect of the amounts, premiums, types and risks insured, were maintained by them at June 30, 2006;

(u) Lending . Establish any new lending programs or make any changes in the respective policies of any Subsidiary of Vision Bancshares concerning which Persons may approve Loans; or originate or issue a commitment to originate any Loan in a principal amount in excess of $1,000,000; provided, however, that Vision Alabama and Vision Florida may renew or refinance any existing Loans with an original principal amount in excess of $1,000,000 if such renewal or refinancing is on substantially the same terms as the original Loan being renewed or refinanced; and provided further, that if Park fails to respond to Vision Bancshares’ written request for approval within two business days after receipt by Park of such written request, such origination of a Loan in a principal amount in excess of $1,000,000, or renewal or refinance of an existing Loan with an original principal amount in excess of $1,000,000, shall be deemed approved by Park.

(v) Interest Rate Swaps and Derivatives . Enter into any interest rate swaps or derivatives or hedge contracts;

(w) Interest Rates . Increase or decrease the rate of interest paid on time deposits or certificates of deposit, except in a manner and consistent with past practices in relation to rates prevailing in the relevant market;

(x) Foreclosures . Foreclose upon or otherwise take title to or possession or control of any real property without first obtaining a Phase I environmental report thereon which indicates that the property is free of Hazardous Material; provided, however, that no such report shall be required to be obtained with respect to single-family, non-agricultural residential real property of one acre or less to be foreclosed upon unless Vision Bancshares or the applicable Subsidiary of Vision Bancshares has reason to believe such real property may contain any such Hazardous Material;

(y) Deposit Liabilities . Cause any material adverse change in the amount or general composition of deposit liabilities other than in the ordinary and usual course of business;

(z) Employment Relationships . Other than with respect to employment agreements Previously Disclosed in the Vision Bancshares Disclosure Schedule, take any action nor omit to take any action which would terminate or enable any Employee or Consultant of Vision Bancshares or any of its Subsidiaries to terminate such Employee’s employment or employment agreement (or Consultant’s relationship) without cause or for “good reason” and continue thereafter to receive compensation;

(aa) Related Party Transactions. Make any payment of cash or other consideration to, or make any Loan to or on behalf of, or enter into, amend or grant a consent or waiver under, or fail to enforce, any contract with, any Related Person, except as Previously Disclosed in the Vision Bancshares Disclosure Schedule; or

(bb) Commitments . Agree or commit to do any of the foregoing items in this Section 4.01, except as Previously Disclosed in the Vision Bancshares Disclosure Schedule.

4.02 Forbearances of Park. From the date hereof until the Effective Time, except as expressly contemplated or permitted by this Agreement, without the prior written consent of Vision

 

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Bancshares, which consent shall not be unreasonably withheld or delayed, Park will not, and will cause each of its Subsidiaries not to:

(a) Ordinary Course . Voluntarily take any action which, at the time taken, has or is reasonably likely to have an adverse affect upon Park’s ability to perform any of its material obligations under this Agreement;

(b) Extraordinary Dividend . Declare, set aside, make or pay any extraordinary or special dividends on Park Common Shares or make any other extraordinary or special distributions in respect of any of its capital stock other than dividends from any Subsidiary of Park to the parent of such Subsidiary;

(c) Governing Documents . Amend the Park Articles, the Park Regulations or the Governing Documents of any of the Park Subsidiaries in a manner that would adversely affect the economic or other benefits of the Merger to the holders of shares of Vision Bancshares Common Stock or to the employees of Vision Bancshares and its Subsidiaries;

(d) Acquisitions . Enter into any agreement to acquire all or substantially all of the capital stock or assets of any other Person or business unless such transaction, to the knowledge of Park, would not be expected to substantially delay the completion of, or materially impair the prospects of completing, the Merger pursuant to this Agreement;

(e) Adverse Actions . Agree, commit or take any action while knowing that such action would, or is reasonably likely to, prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code; or knowingly take any action that is intended or is reasonably likely to result in (i) any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time at or prior to the Effective Time, (ii) any of the conditions to the Merger set forth in Article VII not being satisfied, or (iii) a material violation of any provision of this Agreement except, in each case, as may be required by applicable Law or by any Governmental Authority or Regulatory Authority; or

(f) Commitments . Agree or commit to do any of the foregoing items in this Section 4.02.

ARTICLE V - Representations and Warranties

5.01 Disclosure Schedule . On or prior to the date hereof, Vision Bancshares has delivered to Park a schedule (the “ Vision Bancshares Disclosure Schedule ”) setting forth, among other things, items, the disclosure of which are necessary or appropriate either in response to an express disclosure requirement contained in a provision of this Agreement or as an exception to one or more representations or warranties contained in Section 5.02 or to one or more of Vision Bancshares’ covenants contained in Article IV and Article VI; provided, however, that the mere inclusion of an item in the Vision Bancshares Disclosure Schedule as an exception to a representation or warranty shall not be deemed an admission by Vision Bancshares that such item represents a material exception, fact, event or circumstance, or that such item is reasonably likely to have, or result in, a Material Adverse Effect on Vision Bancshares.

 

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5.02 Representations and Warranties of Vision Bancshares . Subject to Section 5.01 and except as Previously Disclosed in a Section of the Vision Bancshares Disclosure Schedule corresponding to the relevant Section below, Vision Bancshares hereby represents and warrants to Park that each of the following statements is true and accurate:

(a) Organization, Standing and Authority . Vision Bancshares is a corporation duly organized, validly existing and in good standing under the Laws of the State of Alabama and Vision Bancshares is qualified to do business and in good standing in the State of Florida and is not required to be qualified to do business in any other jurisdiction where it owns or leases property or assets or conducts its business. Vision Bancshares is registered as a bank holding company under the Bank Holding Company Act of 1956, as amended (the “ BHCA ”). Vision Alabama is an Alabama state bank chartered under the Alabama Banking Code, is a non-member bank of the Federal Reserve and is duly organized, validly existing and in good standing under the Laws of the State of Alabama. Vision Florida is a Florida state bank chartered under the Florida Financial Institutions Codes, is a non-member bank of the Federal Reserve and is duly organized, validly existing and in good standing under the Laws of the State of Florida. Each of Vision Alabama and Vision Florida is not required to be qualified to do business in any foreign jurisdiction where it owns or leases property or assets or conducts its business. True and complete copies of the Vision Bancshares Articles and the Vision Bancshares Bylaws, and the Governing Documents of Vision Alabama, Vision Florida and each of the other Subsidiaries of Vision Bancshares, in each case as amended to the date of this Agreement, have been Previously Disclosed to Park in the Vision Bancshares Disclosure Schedule.

(b) Capital Structure of Vision Bancshares . As of the date of this Agreement, the authorized capital stock of Vision Bancshares consists solely of 10,000,000 shares of Vision Bancshares Common Stock, of which 6,066,624 shares of Vision Bancshares Common Stock were outstanding, and 1,000,000 shares of Vision Bancshares Preferred Stock, none of which were outstanding. As of the date hereof, no shares of Treasury Stock were held by Vision Bancshares and none were otherwise owned by Vision Bancshares. All of the outstanding shares of Vision Bancshares Common Stock have been duly authorized, are validly issued and outstanding, fully paid and nonassessable, and are not subject to any preemptive rights (and were not issued in violation of any preemptive rights). All shares of Vision Bancshares Common Stock issued have been issued in compliance in all material respects with all applicable federal and state securities Laws. As of the date of this Agreement, except as set forth in the Vision Bancshares Disclosure Schedule, (i) there were no shares of Vision Bancshares Common Stock or Vision Bancshares Preferred Stock authorized and reserved for issuance, (ii) Vision Bancshares did not have any Rights issued or outstanding with respect to Vision Bancshares Common Stock or Vision Bancshares Preferred Stock, and (iii) Vision Bancshares did not have any commitment to authorize, issue or sell any Vision Bancshares Common Stock, Vision Bancshares Preferred Stock or Rights, except pursuant to this Agreement. As of the date of this Agreement, there are no bonds, debentures, notes or other indebtedness of Vision Bancshares, and no securities or other instruments or obligations of Vision Bancshares, the value of which is in any way based upon or derived from any capital or voting stock of Vision Bancshares, having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of Vision Bancshares may vote. As of the date of this Agreement, there are no outstanding contractual obligations of Vision Bancshares or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Vision Bancshares Common Stock.

(c) Subsidiaries .

(i) (A) Vision Bancshares has Previously Disclosed in the Vision Bancshares Disclosure Schedule, a list of all of its Subsidiaries together with the jurisdiction of organization of each such Subsidiary, (B) Vision Bancshares owns, directly or indirectly, all of the issued and outstanding equity securities of or equity interests in each of its Subsidiaries, (C) no equity securities of or other equity interests in any of the Subsidiaries of Vision Bancshares are or may become required to be issued (other than to Vision Bancshares or its wholly-owned Subsidiaries) by reason of any Right or otherwise, (D) there are no contracts, commitments, understandings or arrangements by which Vision Bancshares or any of its Subsidiaries is or may be bound

 

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obligating any such Subsidiary to issue, sell, deliver or otherwise transfer any equity securities of or equity interests in any such Subsidiary (other than to Vision Bancshares or its wholly-owned Subsidiaries), (E) there are no contracts, commitments, understandings or arrangements relating to Vision Bancshares’ rights to vote or to dispose of such securities or interest and (F) all the equity securities of or equity interests in each Subsidiary held by Vision Bancshares or one of its Subsidiaries are fully paid and nonassessable and are owned by Vision Bancshares or such Subsidiary free and clear of any Liens.

(ii) Except as Previously Disclosed in the Vision Bancshares Disclosure Schedule, Vision Bancshares does not own beneficially, directly or indirectly, any equity securities or similar interests of any Person, or any interest in a partnership, joint venture or other entity of any kind, other than its Subsidiaries.

(iii) Each of Vision Alabama and Vision Florida is an “insured depository institution” as defined in the Federal Deposit Insurance Act (the “ FDIA ”) and applicable regulations thereunder and a member of the FHLB of Atlanta.

(iv) Except as Previously Disclosed in the Vision Bancshares Disclosure Schedule, no Subsidiary of Vision Bancshares owns beneficially, directly or indirectly, any equity securities or similar interests of any Person, or any interest in a partnership, joint venture or other entity of any kind, other than, in the case of Vision Alabama and Vision Florida, their respective stock of the FHLB of Atlanta.

(v) Each of Vision Bancshares’ Subsidiaries has been duly organized and is validly existing and in good standing under the Laws of the jurisdiction of its organization, and is not required to be qualified to do business in any foreign jurisdiction where it owns or leases property or assets or conducts its business.

(d) Corporate Power; Authorized and Effective Agreement . Each of Vision Bancshares and its Subsidiaries has full power and authority, corporate or otherwise, to carry on its business as it is now being conducted and to own all its properties and assets. Vision Bancshares has the corporate power and authority to execute, deliver and perform its obligations under this Agreement, including the execution and filing of the appropriate certificate of merger with the Ohio SOS and the appropriate articles of merger with the Alabama SOS, and consummate the transactions contemplated by this Agreement, subject to the required approval of this Agreement by the Vision Bancshares shareholders and the obtaining of appropriate approvals of Regulatory Authorities and Governmental Authorities.

(e) Corporate Authority . Subject to the requisite approval of this Agreement by the holders of two-thirds of the outstanding shares of Vision Bancshares Common Stock entitled to vote thereon (the “ Required Vision Bancshares Vote ”) (which is the only shareholder vote required thereon), the execution, delivery and performance of this Agreement and the transactions contemplated hereby have been authorized by all necessary corporate action of Vision Bancshares and the Vision Bancshares Board on or before the date hereof. The Vision Bancshares Board has duly adopted resolutions (i) approving and declaring advisable this Agreement, the Merger and the other transactions contemplated hereby; (ii) declaring that it is in the best interests of Vision Bancshares’ shareholders that Vision Bancshares enter into this Agreement and consummate the Merger on the terms and subject to the conditions set forth in this Agreement; (iii) declaring that this Agreement is fair to Vision Bancshares’ shareholders; (iv) directing that this Agreement be submitted to a vote of Vision Bancshares’ shareholders at the Vision Bancshares Meeting; and (v) recommending that Vision Bancshares’ shareholders approve this Agreement, which resolutions have not been subsequently rescinded, modified or withdrawn in any way

 

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as of the date of execution of this Agreement and which will not be subsequently rescinded, modified or withdrawn in any way except as permitted by Section 6.06. This Agreement has been duly executed and delivered by Vision Bancshares and, assuming the due authorization, execution and delivery by Park, constitutes the valid and legally binding obligation of Vision Bancshares, enforceable against Vision Bancshares in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar Laws of general applicability relating to or affecting creditors’ rights or by general equity principles and except to the extent such enforceability may be limited by Laws relating to the safety and soundness of insured depository institutions as set forth in 12 U.S.C. Section 1818(b) or the appointment of a conservator by the FDIC).

(f) Regulatory Filings; No Defaults .

(i) No consents or approvals of, or declarations, filings or registrations with, any Governmental Authority or Regulatory Authority or with any third party are required to be made or obtained by Vision Bancshares or any of its Subsidiaries in connection with the execution, delivery or performance by Vision Bancshares of this Agreement or to consummate the Merger or the other transactions contemplated hereby, except for (A) filings of applications and notices, as applicable, with and the approval of certain federal and state banking authorities, (B) filings with the SEC and state securities authorities and (C) filings of the appropriate certificate of merger with the Ohio SOS pursuant to the OGCL and the appropriate articles of merger with the Alabama SOS pursuant to the Alabama Code. As of the date of this Agreement, Vision Bancshares is not aware of any reason why the approvals set forth in Section 7.01(b) will not be received without the imposition of a condition, restriction or requirement of the type described in Section 7.01(b).

(ii) Subject to receipt of the Required Vision Bancshares Vote and the approvals of the Governmental Authorities and Regulatory Authorities referred to above and the expiration of applicable regulatory waiting periods, and required filings under federal and state securities Laws, the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, by Vision Bancshares do not and will not: (A) conflict with, or result in a violation of, or result in the breach of or a default (or with notice or lapse of time would result in a default) under, or give rise to any Lien, any acceleration of remedies or any right of termination under, any provision of any (1) Law, governmental permit or license, or Contract of Vision Bancshares or any of its Subsidiaries or to which Vision Bancshares, any of its Subsidiaries, or Vision Bancshares’ or any of its Subsidiaries’ properties are subject or bound, except, in the case of Contracts, such conflicts, violations, breaches, defaults, Liens, accelerations of remedies or rights of termination which individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect on Vision Bancshares prior to the Merger or on Park upon consummation of the Merger, or (2) any order, writ, judgment, injunction or decree of any Governmental Authority or Regulatory Authority applicable to Vision Bancshares or any of its Subsidiaries, (B) conflict with, or result in a violation of, or result in the breach of or a default (or with notice or lapse of time would result in a default) under, the Vision Bancshares Articles, the Vision Bancshares Bylaws or any other Governing Documents of Vision Bancshares or the Governing Documents of any of Vision Bancshares’ Subsidiaries, or (C) require any consent or approval under any such Law, governmental permit or license, or Contract except, in the case of Contracts, such consents or approvals, the failure of which to be obtained individually or in the aggregate would not reasonably be expected to have a

 

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Material Adverse Effect on Vision Bancshares prior to the Merger or on Park upon consummation of the Merger.

(g) Financial Statements; Internal Controls .

(i) Vision Bancshares has previously delivered to Park true and complete copies of (A) Vision Bancshares’ consolidated statements of financial condition as of December 31, 2003, 2004 and 2005 and the related consolidated statements of income, comprehensive income, changes in stockholders’ equity and cash flows for the fiscal years then ended, including the footnotes thereto, if any, additional or supplemental information supplied therewith and the report prepared in connection therewith by the independent registered public accounting firm auditing such financial statements; and (B) Vision Bancshares’ interim unaudited consolidated financial statements for the three and six months ended June 30, 2006. The documents described in clauses (A) and (B) above (collectively, the “ Vision Bancshares Financial Statements ”):

 

(1)

are true, complete and correct;

 

(2)

are in accordance with the books and records of Vision Bancshares;

 

(3)

comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto;

 

(4)

fairly and accurately present the consolidated financial condition of Vision Bancshares and its Subsidiaries as of the dates thereof, and their respective consolidated results of operations and cash flows for the periods then ended, as applicable (except in each case as may be noted therein and subject, in the case of unaudited interim financial statements, to the absence of full footnotes and to normal year-end audit adjustments that are not material in amount or in effect);

 

(5)

were prepared on a consistent basis throughout the periods involved; and

 

(6)

have been prepared in accordance with GAAP (except, in the case of unaudited financial statements, as permitted by Form 10-Q of the SEC) applied on a consistent basis during the periods involved (except in each case as may be noted therein and subject, in the case of unaudited interim financial statements, to the absence of full footnotes and to normal year-end audit adjustments that are not material in amount or in effect).

(ii) Except as disclosed in Section 5.02(g)(ii) of the Vision Bancshares Disclosure Schedule and except as arising under this Agreement, neither Vision Bancshares nor any of its Subsidiaries has any debt, liability, guarantee or obligation of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether due or to become due), other than debts, liabilities, guarantees and obligations which, individually or in the aggregate, do not exceed $10,000, except for those liabilities that

 

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are reflected or reserved against on the consolidated balance sheet of Vision Bancshares included in its Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2006 (including any footnotes thereto). Except as disclosed in Section 5.02(g)(ii) of the Vision Bancshares Disclosure Schedule, all debts, liabilities and guarantees and obligations of Vision Bancshares and its Subsidiaries since June 30, 2006 have been incurred in the ordinary course of business consistent with past practice and are usual and normal in amount both individually and in the aggregate.

(iii) The records, systems, controls, data and information of Vision Bancshares and its Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of Vision Bancshares or one of its Subsidiaries or their respective accountants (including all means of access thereto and therefrom), except for any non-exclusive ownership and non-direct control that would not reasonably be expected to have a Material Adverse Effect on the system of internal accounting controls described below in this Section 5.02(g)(iii). Vision Bancshares and its Subsidiaries have devised and maintain a system of internal accounting controls sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including that: (A) transactions are executed only in accordance with management’s authorization; (B) transactions are recorded as necessary to permit preparation of the financial statements of Vision Bancshares and its Subsidiaries in conformity with GAAP consistently applied with respect to any criteria applicable to such financial statements and to maintain accountability for the property and assets of Vision Bancshares and its Subsidiaries; (C) access to such property and assets is permitted only in accordance with management’s authorization; (D) the reporting of such property and assets is compared with existing property and assets at regular intervals and appropriate action is taken with respect to any differences; and (E) accounts, notes and other receivables and inventory are recorded accurately, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis. Vision Bancshares (1) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15 promulgated under the Exchange Act) to ensure that material information relating to Vision Bancshares and its Subsidiaries is made known to management of Vision Bancshares by others within Vision Bancshares and its Subsidiaries as appropriate to allow timely decisions regarding required disclosure and to make the certifications required by the Exchange Act with respect to the Vision Bancshares SEC Documents, and (2) has disclosed, based on its most recent evaluation prior to the date hereof, to Vision Bancshares’ outside auditors and the audit committee of the Vision Bancshares Board (y) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15 promulgated under the Exchange Act) that are reasonably likely to adversely affect Vision Bancshares’ ability to record, process, summarize and report financial information and (z) any fraud, whether or not material, that involves management or other employees who have a significant role in Vision Bancshares’ internal control over financial reporting. These disclosures were made in writing by management to Vision Bancshares’ auditors and audit committee and a copy has previously been made available to Park. As of the date hereof, there is no reason to believe that Vision Bancshares’ outside auditors and its principal executive officer and principal financial offer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Sections 302, 404 and 906 of the Sarbanes-Oxley Act,

 

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without qualification (except to the extent expressly permitted by such rules and regulations), when next due.

(iv) Since December 31, 2005, (A) neither Vision Bancshares nor any of its Subsidiaries nor, to Vision Bancshares’ knowledge, any Director, Officer, Employee, auditor, accountant or representative of Vision Bancshares or any of its Subsidiaries has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of Vision Bancshares or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that Vision Bancshares or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and (B) no attorney representing Vision Bancshares or any of its Subsidiaries, whether or not employed by Vision Bancshares or one of its Subsidiaries, has reported evidence of a material violation of securities Laws, breach of fiduciary duty or similar violation by Vision Bancshares or any of its Subsidiaries or any of their respective Officers, Directors, Employees or agents to the Vision Bancshares Board or any committee thereof or to any Director or Officer of Vision Bancshares.

(h) Litigation . Except as Previously Disclosed in the Vision Bancshares Disclosure Schedule, there is no suit, action, investigation, audit or proceeding (whether judicial, arbitral, administrative or other) pending or, to Vision Bancshares’ knowledge, threatened against or affecting Vision Bancshares or any of its Subsidiaries, nor is there any judgment, decree, injunction, rule or order of any Governmental Authority outstanding against Vision Bancshares or any of its Subsidiaries.

 

(i)

Regulatory Matters .

(i) Neither Vision Bancshares nor any of its Subsidiaries or their respective properties is a party to or is subject to any order, judgment, decree, agreement, memorandum of understanding or similar arrangement with, or a commitment letter or similar submission to, or extraordinary supervisory letter from, any Regulatory Authority.

(ii) Neither Vision Bancshares nor any of its Subsidiaries has been advised by any Regulatory Authority that such Regulatory Authority is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such order, judgment, decree, agreement, memorandum of understanding or similar arrangement, commitment letter, supervisory letter or similar submission nor to Vision Bancshares’ knowledge, has any Regulatory Authority commenced an investigation in connection therewith.

(j) Compliance with Laws . Except as Previously Disclosed in the Vision Bancshares Disclosure Schedule, each of Vision Bancshares and its Subsidiaries:

(i) has been and is in compliance in all material respects with all Laws applicable thereto or to the employees conducting their respective businesses, including, without limitation, the Patriot Act, the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, the Equal Credit Opportunity Act, the Fair Housing Act, the Community Reinvestment Act (which includes a CRA Rating of “satisfactory” or better), the Home Mortgage Disclosure Act and all other applicable fair lending Laws and other Laws relating to discriminatory business practices;

 

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(ii) has all permits, licenses, authorizations, orders and approvals of, and has made all filings, applications and registrations with, all Governmental Authorities and Regulatory Authorities that are required in order to permit them to own or lease their respective properties and to conduct their respective businesses as presently conducted; all such permits, licenses, certificates of authority, orders and approvals are in full force and effect; to Vision Bancshares’ knowledge, no suspension or cancellation of any of them has been threatened or would reasonably be expected to occur; and all such filings, applications and registrations are current;

(iii) (A) has not received, since December 31, 2003, any written notification or communication from any Governmental Authority or any Regulatory Authority (1) asserting that Vision Bancshares or any of its Subsidiaries is not in compliance with any of the statutes, regulations or ordinances which such Governmental Authority or Regulatory Authority enforces; (2) threatening to revoke any license, franchise, permit or governmental authorization (nor, to Vision Bancshares’ knowledge, do any grounds for any of the foregoing exist); or (3) restricting or disqualifying any of their activities (except for restrictions generally imposed by rule, regulation or administrative policy on banking organizations generally); (B) is not aware of any pending or threatened investigation, review or disciplinary proceedings by any Governmental Authority against Vision Bancshares or any of its Officers, Directors or Employees; and (C) is not subject to any order or decree issued by, or a party to any agreement or memorandum of understanding with, or a party to any commitment letter or similar undertaking to, or subject to any order or directive by, or a recipient of any supervisory letter from, and has not adopted any board resolutions at the request of, any Governmental Authority and has not been advised by any Governmental Authority that it is considering issuing or requesting any such agreement or other action.

(k) Material Contracts; Defaults .

(i) Except as set forth in the Vision Bancshares Disclosure Schedule, neither Vision Bancshares nor any of its Subsidiaries is a party to or is bound by any Contract of the following types as of the date of this Agreement, nor is any such Contract presently being negotiated or discussed:

(A) Any Contract involving commitments to others to make capital expenditures or purchases or sales in excess of $25,000 in any one case or $50,000 in the aggregate in any period of 12 consecutive months;

(B) Any Contract relating to any direct or indirect indebtedness of Vision Bancshares or any of its Subsidiaries for borrowed money (including loan agreements, lease purchase arrangements, guarantees, agreements to purchase goods or services or to supply funds or other undertakings on which others rely in extending credit), or any conditional sales Contracts, chattel mortgages, equipment lease agreements and other security arrangements with respect to personal property with an obligation in excess of $25,000 in any one case or $50,000 in the aggregate in any period of 12 consecutive months;

(C) Any employment, severance, consulting or management services Contract or any confidentiality or proprietary rights Contract with any Director, Officer, Employee or Consultant of Vision Bancshares or any of its Subsidiaries;

 

29

(D) Any Contract containing covenants limiting the freedom of Vision Bancshares or any of its Subsidiaries to compete in any line of business or with any Person or in any area or territory;

(E) Any partnership, joint venture, limited liability company arrangement or other similar agreement;

(F) Any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, issuance, or other plan or arrangement for the benefit of Vision Bancshares’ or any of its Subsidiaries’ current or former Directors, Officers, Employees or Consultants;

(G) Any license agreement, either as licensor or licensee, or any other Contract of any type relating to any Intellectual Property, except for license agreements relating to off-the-shelf software or software components pursuant to a non-negotiable standard form or “shrink wrap” license agreement or where the aggregate purchase price for a software license agreement is less than $50,000;

(H) Any Contract with any Director, Officer, Employee or Consultant of Vision Bancshares or any of its Subsidiaries or any Associate of any such Director, Officer, Employee or Consultant, or any arrangement under which Vision Bancshares or any of its Subsidiaries has advanced or loaned any amount to any of their respective Directors, Officers, Employees and Consultants or any of their respective Associates;

(I) Any Contract, whether exclusive or otherwise, with any sales agent, representative, franchisee or distributor involving money or property and having an obligation in excess of $25,000 in any one case or $50,000 in the aggregate in a period of 12 consecutive months;

(J) Other than this Agreement and any ancillary agreements being executed in connection with this Agreement, any Contract providing for the acquisition or disposition of any portion of the assets, properties or securities of Vision Bancshares or any of its Subsidiaries;

(K) Any Contract that requires the payment of royalties;

(L) Any Contract under which the consequences of a breach, violation or default would reasonably be expected to have a Material Adverse Effect on the business of Vision Bancshares or any of its Subsidiarie