EXHIBIT 10.2
DIVESTITURE AGREEMENT
This Divestiture Agreement (this "Agreement"), dated December __, 2004,
is made by and between Third Federal Savings and Loan Association of Cleveland,
MHC (the "MHC"), TFS Financial Corporation ("TFS") and Ohio Central Savings
("OCS").
RECITALS
WHEREAS, TFS is a federal corporation that is a wholly-owned subsidiary
of the MHC;
WHEREAS, TFS and OCS entered into a Combination Agreement dated February
16, 2001, whereby OCS became a wholly-owned subsidiary of TFS;
WHEREAS, the MHC joined the Combination Agreement by a Joinder
Agreement, dated March 21, 2001;
WHEREAS, TFS owns 1,000 shares of common stock, par value $.01 per
share, of OCS (the "OSC Common Stock"), such stock being all of the issued and
outstanding capital stock of OCS;
WHEREAS, OCS desires to repurchase all of the OCS Common Stock held by
TFS, in connection with the divestiture of OCS by TFS as a wholly-owned
subsidiary of TFS, in exchange for (i) the payment of $792,000 (the "Divestiture
Payment") by OCS to TFS, and (ii) the other consideration described in this
Agreement (such transactions collectively are referred to herein as the
"Divestiture");
WHEREAS, the purpose of the Divestiture is to permit OCS to become an
independent institution and to raise additional capital through a mutual to
stock conversion (the "Stock Conversion") following the Divestiture; and
WHEREAS, TFS and OCS desire to enter into this Agreement to set forth
their agreement regarding the terms and conditions of the Divestiture.
NOW THEREFORE, in consideration of the representations, warranties and
mutual covenants of the parties contained herein, and for good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
THE DIVESTITURE AND STOCK CONVERSION
SECTION 1.1 CLOSING. The closing of the Divestiture (the "Closing")
shall occur immediately prior to the completion of the sale of the stock in the
Stock Conversion and after receipt of all regulatory approvals (the "Closing
Date").
SECTION 1.2 DIVESTITURE. At the Closing, TFS shall sell, assign,
transfer and convey to OCS all of the shares of OCS Common Stock held or owned
by TFS. In consideration of, and effective concurrently with such sale and
transfer, OCS shall pay to TFS the Divestiture Payment
in cash. Immediately following the purchase of the OCS Common Stock, OCS shall
exchange its charter for a federal mutual savings association charter and
complete its mutual to stock conversion.
SECTION 1.3 STOCK CONVERSION. Immediately following the completion
of the Divestiture, OCS shall complete the Stock Conversion.
SECTION 1.4 DELIVERIES. At the Closing, TFS shall deliver to OCS the
stock certificate representing the OCS common stock, in proper form for transfer
duly endorsed in blank or accompanied by appropriate stock powers properly
executed by TFS.
SECTION 1.5 DIRECTORS. Paul Huml or such other representative of TFS
on the OCS Board of Directors shall tender his or her resignation as a director
effective on or before the execution of this Agreement.
SECTION 1.6 FEE DEFERRAL. Each director of OCS as of the date of
this Agreement that has a Director Fee Deferral Agreement with OCS shall retain
such funds at OCS (the "Director Plan"). OCS shall arrange for the payout of the
benefit due those directors that have resigned from the Board of Directors. OCS
shall reimburse TFS for the portion of the obligation TFS has previously funded
to pay the benefit to those directors that remain on the Board of Directors.
SECTION 1.7 TERMINATION. Upon the Closing, all warranties,
representations and covenants of the MHC, TFS and OCS in the Combination
Agreement and the Joinder Agreement shall terminate and the parties shall have
no further obligation thereunder.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 REPRESENTATIONS OF THE MHC AND TFS. The MHC and TFS
hereby represent and warrant to OCS that:`
(a) The OCS Common Stock is lawfully owned beneficially and
of record by TFS.
(b) The MHC and TFS have the full legal right, power and
authority to enter into this Agreement and to consummate the transactions
hereunder.
(c) The delivery of the OCS Common Stock to OCS pursuant to
this Agreement will transfer to OCS good and valid title to the OCS Common
Stock, free and clear of all liens, encumbrances, restrictions and claims of
every kind.
(d) The execution, delivery and performance by the MHC and
TFS of this Agreement have been duly authorized by all necessary corporate
action.
(e) This Agreement has been duly executed and delivered by
the MHC and TFS and, assuming the due authorization, execution and delivery of
this Agreement by OCS, represents a valid and binding obligation of the MHC and
TFS, enforceable against the MHC and TFS in accordance with its terms, subject
only to bankruptcy, insolvency and other laws
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affecting creditors, rights generally and subject to general equitable
principles ("Debtor Relief Laws").
(f) Neither the MHC nor TFS has incurred or will incur any
broker's, finder's or similar fee, commission or expense in connection with the
transactions contemplated by this Agreement.
SECTION 2.2 REPRESENTATIONS OF OCS. OCS hereby represents and
warrants to the MHC and TFS that:
(a) OCS has full legal right, power and authority to enter
into this Agreement and to consummate the transactions hereunder.
(b) The execution, delivery and performance by OCS of this
Agreement has been duly authorized by all necessary corporate action.
(c) This Agreement has been duly executed and delivered by
OCS and, assuming the due authorization, execution and delivery of this
Agreement by the MHC and TFS, represents a valid and binding obligation of OCS,
enforceable against OCS in accordance with its terms, subject only to Debtor
Relief Laws, including those applicable to federal savings associations.
(d) OCS has not incurred and will not incur any broker's,
finder's or similar fee, commission or expense in connection with the
transactions contemplated by this Agreement.
(e) The consummation of the transactions contemplated by
this Agreement will not cause OCS to become "undercapitalized," as such term is
defined by Office of Thrift Supervision ("OTS") regulations.
ARTICLE III
OTHER AGREEMENTS
SECTION 3.1 ACTIONS PRIOR TO THE CLOSING DATE.
(a) Until the Closing Date, OCS shall take those measures
reasonably necessary or appropriate to maintain its business in accordance with
applicable law and commercially acceptable banking practices. In addition, OCS
shall comply with its current business plan in all material respects.
(b) A representative of TFS shall have the right to attend
as an observer that portion of each OCS board meeting prior to Closing that does
not involve deliberations by the board for that period after the Closing. In
addition, TFS shall receive such reports, board minutes and other materials
provided to the OCS Board of Directors that do not involve information regarding
the plans of OCS following the Closing.
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SECTION 3.2 CONSENTS AND BEST EFFORTS.
(a) Promptly after execution and delivery of this Agreement,
OCS shall make all filings required under applicable laws and regulations to
complete the Divestiture and Stock Conversion. In addition, the MHC, TFS and OCS
will each promptly furnish all information as may be reasonably required by the
OTS, Securities and Exchange Commission or any federal or state regulatory
agency properly asserting jurisdiction in order that the requisite approvals for
the transactions contemplated hereby, may be obtained. The MHC, TFS and OCS
will, as soon as practicable, commence to take all other action required to
promptly as practicable to effect the divestiture and re-establish OCS as an
independent institution, including the OCS 401(k) plan and other employee
benefit plans applicable to OCS employees. In addition, the MHC, TFS and OCS
will take all other action reasonable and necessary to obtain all necessary
permits, consents, approvals, authorizations and agreements of, and to give all
notices and reports and make all other filing with, any third parties and to
take all other actions reasonably necessary to complete the transactions
contemplated herein.
(b) The MHC, TFS and OCS shall provide to each other copies
of all applications, documents, correspondence or oral (to the extent material)
or written comments that each of them or any of their affiliates files with,
sends to or receives from any regulatory or governmental agency (including
drafts of such applications, documents and correspondence with a reasonable
period of time to review and comment on such items prior to filing), relating to
this Agreement, including any applications filed for the purpose of obtaining
any necessary regulatory consents, approvals or waivers. Each of the MHC, TFS
and OCS recognizes that time is of the essence in carrying out the obligations
under this section 3.2. The MHC and TFS on one hand and OCS on the other, each
represents and warrants to the other that all information concerning it, its
affiliates or their respective directors, officers, shareholders and
subsidiaries included (or submitted for inclusion) in any such application or
filing shall be true, correct and complete in all material respects. In
addition, subject to the terms and conditions herein provided, each of the
parties hereto covenants and agrees to use its commercially reasonable efforts
to take, or cause or be taken, all action or do, or cause to be done, all things
necessary, proper or appropriate to consummate and make effective the
Divestiture contemplated hereby and to cause the fulfillment of the parties'
obligations hereunder.
SECTION 3.3 NOTIFICATION OF CERTAIN MATTERS; SUPPLEMENTAL
DISCLOSURE. The MHC and TFS or OCS shall give prompt notice to each other, of
(i) the occurrence, or failure to occur, of any event which occurrence or
failure would be likely to cause any representation or warranty of the MHC, TFS
or OCS, as the case may be, contained in this Agreement to be untrue or
inaccurate in any material respect at any time from the date hereof to the
Closing Date by the MHC, TFS or OCS, as the case may be, (ii) any material
failure of the MHC, TFS or OCS, as the case may be, to comply with or satisfy
any covenant, condition or agreement to be complied with or satisfied by it
hereunder, and each party shall use all reasonable efforts to remedy such
failure, (iii) any information known to the MHC, TFS or OCS, respectively, that
indicates that any representation or warranty of such, contained herein will not
be true and correct in any material respect as of the Closing Date, and (iv) the
occurrence of any event known to the MHC, TFS or OCS, which will result, or has
a reasonable prospect of resulting, in the failure to satisfy a condition
specified in Article V hereof. The delivery of such updated information shall
not relieve the MHC, TFS or OCS, as the case may be, of any violation of its
representations and
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warranties herein, and shall not have any effect for purposes of determining the
satisfaction of the conditions set forth in Article V hereof other than
compliance with this Section 3.3.
SECTION 3.4 ANNOUNCEMENTS. Prior to the Closing, no party hereto
will issue any press release or otherwise directly or indirectly make any public
statement or furnish any statement or make any announcement to its customers
with respect to the transaction contemplated hereby without the prior consent of
the other, except as may be required by law and then after prior notification
and a reasonable opportunity to review by the other party.
SECTION 3.5 RELEASE OF FURTHER OBLIGATION. Effective upon the
Closing, each of the MHC and TFS, and OCS, respectively, release each other and
their affiliates, directors, officers and employers from any liability, cause of
action, claim or demand of any nature which they may have ever had against the
respective other party or may have against the other party in the future, in
connection with the Combination Agreement, Joinder Agreement and the affiliation
of OCS with the MHC and TFS excepting any liability of OCS for any federal or
state tax liability incurred while a subsidiary of TFS or prior thereto if TFS
has liability for such payment. The parties shall cooperate and use their best
efforts to resolve any matters that arise under this Section.
ARTICLE IV
CONTINUING COOPERATION
SECTION 4.1 FINANCIAL INFORMATION. The MHC, TFS and OCS agree that
so long as any books, records and files relating to the business, properties,
assets or operations of OCS, TFS or the MHC, to the extent that they pertain to
the operations of OCS, TFS or the MHC prior to the Closing Date, remain in
existence and available, each party (at its expense) shall have the right to
inspect for any proper purpose and to make copies of the same at any time during
normal business hours.
SECTION 4.2 FURTHER ASSURANCES. On and after the Closing Date, the
MHC, TFS and OCS will take all appropriate action and execute all documents,
instruments or conveyances of any kind which may be reasonably necessary or
advisable in order to carry out any of the provisions hereof.
SECTION 4.3 EMPLOYEES. Neither the MHC, TFS nor OCS or any of their
affiliaties shall solicit for employment any individual employed by the MHC, TFS
or OCS or their affiliaties, respectively, for a period of one year following
the Closing Date. This restriction shall not apply to general solicitations and
placing advertisements in help-wanted ads seeking new employees.
SECTION 4.4 OTHER AGREEMENTS. This Agreement shall not affect the
Servicing Agreement between OCS and Broadway Realty Holdings Co. regarding the
servicing of automobile loans sold by OCS to Broadway Realty Holdings Co. and
serviced by OCS.
ARTICLE V
CONDITIONS TO CLOSING
SECTION 5.1 The obligations of the MHC, TFS and OCS to consummate
the Divestiture is subject to the following conditions.
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(a) To the extent required by the OTS, the members of OCS
shall have approved the Divestiture and Stock Conversion in accordance with the
requirements of the Office of Thrift Supervision.
(b) The Divestiture and Stock Conversion shall have been
approved by the OTS.
(c) The conditions for completing the Divestiture and Stock
Conversion shall have been satisfied or waived.
(d) None of the parties hereto shall be subject to any
order, decree, stay or injunction of a court or agency of competent jurisdiction
which enjoins or prohibits the consummation of the transactions contemplated
hereby.
(e) The MHC, TFS and OCS have taken the necessary action to
transfer the Director Plans to OCS.
SECTION 5.2 The obligation of the MHC and TFS to consummate the
Divestiture is subject to the following conditions:
(a) OCS shall have delivered the Divestiture Payment in cash
as payment for the repurchase of all the outstanding shares of OCS Common Stock.
(b) OCS shall have delivered a certificate, signed by its
president and chief executive officer, that the representations and warranties
in Section 2.2 are true and correct in all material respects and OCS has
complied with all of its obligations under this Agreement in all material
aspects.
(c) OCS is "adequately capitalized" as such term is defined
in by OTS regulations.
(d) The financial condition or results of operations of OCS
has not incurred a material adverse change from the date of this Agreement other
than which may have been caused by (i) any change in law or regulation or in
GAAP which change affected financial institutions generally; (ii) compliance
with this Agreement or (iii) expenses incurred in connection with this Agreement
and the transactions contemplated hereby.
SECTION 5.3 The obligation of OCS to consummate the Divestiture is
subject to the following conditions:
(a) TFS shall have endorsed the stock certificate for the
outstanding shares of OCS Common Stock over to OCS.
(b) The MHC and TFS shall have delivered a certificate,
signed by its president and chief executive officer, that the representations
and warranties in Section 2.1 are true and correct in all material respects and
that the MHC and TFS has complied with all of its obligations under this
Agreement in all material respects.
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(c) Paul Huml shall have tendered his resignation from the
board of directors of OCS.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 EXPENSES. OCS shall pay all of the fees and expenses
incurred by OCS in connection with the Stock Conversion, and registration and
sale of shares of OCS Common Stock in the Stock Conversion. Each of the MHC, TFS
and OCS shall be responsible for their respective fees and expenses in carrying
out their obligations under this Agreement.
SECTION 6.2 NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be deemed given (a) when delivered by
hand or mail, (b) when transmitted by facsimile, with confirmation of receipt,
or (c) one business day after being sent by Express Mail, Federal Express or
other express delivery service with next day delivery, to the addressee at the
following address or facsimile number (or to such other address or facsimile
number as a party may specify from time to time by notice hereunder):
If to the MHC or TFS:
TFS Financial Corporation
7007 Broadway Avenue
Cleveland, Ohio 44105
Attn: Paul J. Huml
Facsimile No.: (216) 441-0055
If to OCS:
Ohio Central Savings
6033 Perimeter Drive
Dublin, Ohio 43017
Attn: Robert W. Hughes
Facsimile No.: (614) 761-2909
SECTION 6.3 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof, supersedes
all prior agreements and understandings between them, and may not be modified,
amended or terminated except by a written agreement signed by all of the parties
hereto.
SECTION 6.4 WAIVERS. No waiver of any breach or default hereunder
shall be considered valid unless in writing and signed by the party giving such
waiver, and no such waiver shall be deemed a waiver of any subsequent breach or
default of the same or similar nature.
SECTION 6.5 SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of, and be binding upon the MHC, TFS and OCS and their respective
permitted successors and assigns and may not be assigned in whole or in part by
either of them without the prior written consent of the other parties, and any
such attempted assignment without such consent shall be null and void.
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SECTION 6.6 SEVERABILITY. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdictions, it
being intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
SECTION 6.7 COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
SECTION 6.8 CHOICE OF LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio to the extent federal
law does not apply.
SECTION 6.9 THIRD PARTIES. Nothing in this Agreement is intended to
confer any rights or remedies under or by reason of this Agreement on any
persons other than the parties hereto and their affiliates and respective
permitted successors and assigns.
SECTION 6.10 HEADINGS. The Article and Section headings contained
herein are for the purpose of convenience only and are not intended to define or
limit the contents of such Articles and Sections and shall be given no effect in
the construction or interpretation of this Agreement. The term "including" or
"include" shall mean "including, without limitation," and the subsequent listing
of any matters shall in no event be construed to limit or narrow the breadth of
the preceding clause or matter. Any reference to an Article or Section herein
shall be deemed to be a reference to that Article or Section hereof.
SECTION 6.11 RULES OF CONSTRUCTION. Each of the MHC, TFS and OCS
agree that (a) the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation or construction of this Agreement, and (b) no usage of
trade, course of dealing, course of performance or enforcement or surrounding
circumstances shall be used in interpreting or construing this Agreement.
SECTION 6.12 INJUNCTIONS. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. Therefore, the parties hereto shall be entitled to seek an injunction
or injunctions to prevent breach of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof in any court having
jurisdiction, such remedy being in addition to any other remedy to which they
may be entitled at law or in equity.
SECTION 6.13 CONFIDENTIALITY.
(a) All confidential information disclosed by the MHC, TFS
or OCS whether prior to or subsequent to the Closing Date to the respective
other party, shall be maintained as such by the parties except as disclosure is
required by law. If the transactions described herein are not consummated, all
documents and copies hereof containing such confidential information in the
possession of the MHC, TFS and OCS or its agents or representatives shall be
returned to the respective party. For purposes of this paragraph, confidential
information shall mean
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information relating to the assets, business and financial condition of the MHC,
TFS and OCS that is not publicly available through sources other than the MHC,
TFS or OCS.
(b) All terms and conditions of the transactions, whether or
not the transactions described herein is consummated, shall be kept in
confidence by the parties and shall not be disclosed to any other party;
provided, this shall not prohibit the parties from disclosing such information
to their respective accountants, lawyers and other financial advisers so long as
such parties have agreed to be bound by the confidentiality provisions of this
paragraph or as otherwise required by law.
SECTION 6.14 SURVIVAL. All representations and warranties contained
herein or made in connection herewith shall survive for a period of twelve (12)
months following the Closing Date, and shall not be waived by, any investigation
by any other party, the execution and delivery of this Agreement, or the
performance by the parties of their respective obligations hereunder or
thereunder. All covenants and agreements of the parties set forth herein shall
continue in full force and effect from and after the date hereof until such date
as all of such covenants and agreements have been satisfied in full or waived,
or this Agreement has otherwise been terminated, except for such warranties,
representations, covenants and agreements as survive such termination by their
own terms.
SECTION 6.15 TERMINATION.
(a) The MHC and TFS shall have the right to terminate this
Agreement if OCS has not received the necessary regulatory approvals, including
those from the OTS, to commence the stock offering for the Stock Conversion by
July 1, 2005. In addition, in any event, the MHC and TFS shall have the right to
terminate this Agreement if the Closing has not occurred by September 1, 2005.
(b) The MHC, TFS and OCS shall have the right to terminate
this Agreement by mutual consent of the parties.
(c) The MHC and TFS, and OCS, respectively, shall have the
right to terminate this Agreement for any material breach of a representation,
warranty or covenant of the MHC or TFS, or OCS, respectively, in this Agreement.
(d) In the event this Agreement is terminated by the MHC and
TFS, TFS shall have the right to reappoint a representative to the Board of
Directors of OCS.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THIRD FEDERAL SAVINGS AND LOAN
ASSOCIATION OF CLEVELAND, MHC
TFS FINANCIAL CORPORATION
By: Paul J. Huml
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Name: Paul J. Huml
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Title: COO
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OHIO CENTRAL SAVINGS
By: /s/ Robert W. Hughes
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Robert W. Hughes, President and
Chief Executive Officer
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