<PAGE>
AGREEMENT AND PLAN OF MERGER
DATED AS OF APRIL 2, 2008
BY AND BETWEEN
FIRST PLACE FINANCIAL CORP.
AND
OC FINANCIAL, INC.
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TABLE OF CONTENTS
PAGE
----
ARTICLE I THE
MERGER...........................................................1
1.1
THE
MERGER.......................................................1
1.2
EFFECTIVE
TIME...................................................2
1.3
EFFECTS OF THE
MERGER............................................2
1.4
CERTIFICATE OF INCORPORATION AND
BYLAWS..........................2
1.5
DIRECTORS AND EXECUTIVE OFFICERS OF THE SURVIVING
CORPORATION....2
1.6
TAX
CONSEQUENCES.................................................2
1.7
OFFICES..........................................................2
1.8
ADDITIONAL
ACTIONS...............................................2
ARTICLE II CONSIDERATION; ELECTION AND EXCHANGE
PROCEDURES.....................3
2.1
CONVERSION OF
SHARES.............................................3
2.2
EXCHANGE
PROCEDURES..............................................4
2.3
RIGHTS AS STOCKHOLDERS; STOCK
TRANSFERS..........................5
2.4
NO
FRACTIONAL SHARES.............................................5
2.5
ANTI-DILUTION
PROVISIONS.........................................5
2.6
WITHHOLDING
RIGHTS...............................................5
2.7
DISSENTERS'
RIGHTS...............................................6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF
SELLER...........................6
3.1
CORPORATE
ORGANIZATION...........................................7
3.2
CAPITALIZATION...................................................7
3.3
AUTHORITY; NO
VIOLATION..........................................8
3.4
CONSENTS AND
APPROVALS..........................................10
3.5
REPORTS.........................................................10
3.6
FINANCIAL
STATEMENTS............................................10
3.7
BROKER'S
FEES...................................................11
3.8
ABSENCE OF CERTAIN CHANGES OR
EVENTS............................11
3.9
LEGAL
PROCEEDINGS...............................................12
3.10
TAXES...........................................................12
3.11
EMPLOYEE
BENEFIT PLAN MATTERS...................................16
3.12
REGULATORY
REPORTS..............................................17
3.13
OC
FINANCIAL INFORMATION........................................17
3.14
OWNERSHIP
OF FIRST PLACE COMMON STOCK...........................18
3.15
COMPLIANCE
WITH APPLICABLE LAW..................................18
3.16
CERTAIN
CONTRACTS...............................................18
3.17
AGREEMENTS
WITH REGULATORY AGENCIES.............................19
3.18
INVESTMENT
SECURITIES...........................................20
3.19
INTELLECTUAL
PROPERTY...........................................20
3.20
UNDISCLOSED
LIABILITIES.........................................21
3.21
STATE
TAKEOVER LAWS.............................................21
3.22
ADMINISTRATION OF FIDUCIARY
ACCOUNTS............................21
3.23
ENVIRONMENTAL
MATTERS...........................................21
3.24
DERIVATIVE
TRANSACTIONS.........................................22
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3.25
OPINION.........................................................22
3.26
ASSISTANCE
AGREEMENTS...........................................23
3.27
APPROVALS.......................................................23
3.28
LOAN
PORTFOLIO..................................................23
3.29
MORTGAGE
BANKING BUSINESS.......................................24
3.30
PROPERTIES......................................................26
3.31
LABOR AND
EMPLOYMENT MATTERS....................................26
3.32
TERMINATION
BENEFITS............................................27
3.33
DEPOSITS........................................................27
3.34
REQUIRED
VOTE; ANTITAKEOVER PROVISIONS INAPPLICABLE.............27
3.35
TRANSACTIONS WITH
AFFILIATES....................................27
3.36
INSURANCE.......................................................27
3.37
INDEMNIFICATION.................................................28
3.38
VOTING
AGREEMENTS...............................................28
3.39
CRA
RATING......................................................28
3.40
DISCLOSURE......................................................28
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF FIRST
PLACE......................28
4.1 CORPORATE
ORGANIZATION..........................................29
4.2
CAPITALIZATION..................................................29
4.3
AUTHORITY; NO
VIOLATION.........................................30
4.4
CONSENTS AND
APPROVALS..........................................31
4.5
REPORTS.........................................................32
4.6
FINANCIAL
STATEMENTS............................................32
4.7
BROKER'S
FEES...................................................33
4.8
ABSENCE OF CERTAIN CHANGES OR
EVENTS............................33
4.9
LEGAL
PROCEEDINGS...............................................33
4.10
TAXES...........................................................34
4.11
SEC
REPORTS.....................................................34
4.12
FIRST
PLACE INFORMATION.........................................35
4.13
OWNERSHIP
OF OC FINANCIAL COMMON STOCK..........................35
4.14
COMPLIANCE
WITH APPLICABLE LAW..................................35
4.15
AGREEMENTS
WITH REGULATORY AGENCIES.............................35
4.16
UNDISCLOSED
LIABILITIES.........................................36
4.17
LOAN
PORTFOLIO..................................................36
4.18
TRANSACTIONS WITH
AFFILIATES....................................36
4.19
INSURANCE.......................................................36
4.20
CRA
RATING......................................................37
4.21
EMPLOYEE
BENEFIT MATTERS........................................37
4.22
DISCLOSURE......................................................38
4.23
REQUIRED
VOTE...................................................38
4.24
APPROVALS.......................................................38
ARTICLE V COVENANTS RELATING TO CONDUCT OF
BUSINESS...........................38
5.1
FORBEARANCES OF OC
FINANCIAL....................................38
5.2
FORBEARANCES OF FIRST
PLACE.....................................43
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ARTICLE VI ADDITIONAL
AGREEMENTS..............................................44
6.1
REASONABLE BEST
EFFORTS.........................................44
6.2
STOCKHOLDER
APPROVAL............................................44
6.3
REGISTRATION
STATEMENT..........................................44
6.4 REGULATORY
FILINGS..............................................45
6.5
PRESS
RELEASES..................................................46
6.6
ACCESS;
INFORMATION.............................................46
6.7
ACQUISITION
PROPOSALS...........................................47
6.8
CERTAIN
POLICIES................................................48
6.9
NASDAQ
LISTING..................................................48
6.10
INDEMNIFICATION.................................................48
6.11
BENEFIT
PLANS...................................................50
6.12
NOTIFICATION OF CERTAIN
MATTERS.................................52
6.13
SUBSEQUENT
INTERIM AND ANNUAL FINANCIAL STATEMENTS..............52
6.14
BOARD AND
LOAN COMMITTEE VISITATION RIGHTS......................52
6.15
CURRENT
INFORMATION.............................................53
6.16
EXECUTION
AND AUTHORIZATION OF BANK MERGER AGREEMENT............53
ARTICLE VII CONDITIONS
PRECEDENT..............................................54
7.1
CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
MERGER......54
7.2
CONDITIONS TO OBLIGATIONS OF FIRST
PLACE........................55
7.3
CONDITIONS TO OBLIGATIONS OF OC
FINANCIAL.......................57
ARTICLE VIII TERMINATION AND
AMENDMENT........................................58
8.1
TERMINATION.....................................................58
8.2
EFFECT OF
TERMINATION...........................................60
8.3
EXTENSION;
WAIVER...............................................61
ARTICLE IX GENERAL
PROVISIONS.................................................61
9.1
CLOSING.........................................................61
9.2
ALTERNATIVE
STRUCTURE...........................................62
9.3
NONSURVIVAL OF REPRESENTATIONS, WARRANTIES AND
AGREEMENTS.......62
9.4
EXPENSES........................................................62
9.5
NOTICES.........................................................62
9.6
INTERPRETATION..................................................63
9.7
ENTIRE
AGREEMENT................................................63
9.8
GOVERNING
LAW...................................................63
9.9
ENFORCEMENT OF THE
AGREEMENT....................................64
9.10
SEVERABILITY....................................................64
9.11
AMENDMENT.......................................................64
9.12
ASSIGNMENT......................................................64
9.13
COUNTERPARTS....................................................64
iii
<PAGE>
AGREEMENT AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER, dated as of April 2, 2008
("Agreement"), is by and between First Place Financial Corp., a
Delaware
corporation ("First Place"), and OC Financial, Inc., a Maryland
corporation ("OC
Financial") (First Place and OC Financial are sometimes
collectively referred to
herein as the "Parties").
WHEREAS,
the boards of directors of First Place and OC Financial: (i)
have
determined that it is in the best interests of their respective
companies and
their stockholders to consummate the Merger (as defined in Section
1.1 hereof)
and the Subsidiary Merger (as defined below) and (ii) have
determined that this
Agreement and the transactions contemplated hereby are consistent
with, and in
furtherance of, its respective business strategies; and (iii) have
approved, at
meetings of each such board of directors, this Agreement; and
WHEREAS,
following the execution and delivery of this Agreement, First
Place Bank (the "Bank"), a federal savings association and a wholly
owned
subsidiary of First Place and Ohio Central Savings ("OC Bank"), a
federal
savings association and a wholly owned subsidiary of OC Financial,
will enter
into a Plan of Merger (the "Bank Merger Agreement"), a form of
which is attached
hereto as ANNEX A, that provides for the merger of the Bank after
the Effective
Time (as defined in Section 1.2 hereof), with OC Bank as the
surviving
institution ("Subsidiary Merger"); and
WHEREAS,
the directors and executive officers of OC Financial have on
the
date hereof entered into Voting Agreements with First Place, in the
form
attached hereto as ANNEX B, agreeing to vote for the Merger;
and
WHEREAS, the
Parties desire to make certain representations, warranties
and agreements in connection with the Merger and also to prescribe
certain
conditions to the Merger.
NOW,
THEREFORE, in consideration of the mutual covenants,
representations,
warranties and agreements contained herein, and intending to be
legally bound
hereby, the Parties agree as follows:
ARTICLE I
THE MERGER
1.1
THE MERGER.
Subject to the terms and conditions of this Agreement,
in accordance with the Delaware General Corporation Law (the
"DGCL") and the
Maryland General Corporation Law (the "MGCL"), at the Effective
Time (as defined
in Section 1.2 hereof), OC Financial shall merge with and into
First Place (the
"Merger"), with First Place as the surviving corporation
(hereinafter sometimes
called the "Surviving Corporation") in the Merger. Upon completion
of the
Merger, First Place will continue its corporate existence under the
laws of the
State of Delaware. The name of the Surviving Corporation shall be
"First Place
Financial Corp." Upon consummation of the Merger, the separate
corporate
existence of OC Financial shall terminate.
1
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1.2
EFFECTIVE TIME.
The Merger shall become effective as set forth in
the certificate of merger ("Certificate of Merger") which shall be
filed with
the Secretary of State of Delaware and the articles of merger
("Articles of
Merger") which shall be filed with the Maryland State Department of
Assessments
and Taxation (the "SDAT") on the Closing Date (as defined in
Section 9.1
hereof). The term "Effective Time" shall be the date and time when
the Merger
becomes effective, as set forth in the Certificate of Merger and
Articles of
Merger. The Effective Time shall be on a date that is no later than
the Closing
Date.
1.3
EFFECTS OF THE
MERGER. At and after the Effective Time, the Merger
shall have the effects set forth in the DGCL, including Sections
259 and 261,
and in the MGCL.
1.4
CERTIFICATE OF
INCORPORATION AND BYLAWS. At the Effective Time, the
Certificate of Incorporation and Bylaws of First Place, as in
effect immediately
prior to the Effective Time, shall be the Certificate of
Incorporation and
Bylaws of the Surviving Corporation until thereafter changed or
amended as
provided therein or by applicable law.
1.5
DIRECTORS AND
EXECUTIVE OFFICERS OF THE SURVIVING CORPORATION. The
directors of First Place prior to the Effective Time shall be the
directors of
First Place immediately after the Effective Time. The executive
officers of
First Place prior to the Effective Time shall be the executive
officers of First
Place immediately after the Effective Time.
1.6
TAX
CONSEQUENCES. It is intended that the Merger constitute a
reorganization within the meaning of Section 368(a) of the Internal
Revenue Code
of 1986, as amended (the "Code"), and that this Agreement shall
constitute a
"plan of reorganization" for the purposes of Section 368 of the
Code.
1.7
OFFICES. After
the Effective Time, the headquarters of the Surviving
Corporation shall be at 185 East Market Street, Warren, Ohio
44481.
1.8
ADDITIONAL
ACTIONS. If, at any time after the Effective Time, First
Place shall consider that any further assignments or assurances in
law or any
other acts are necessary or desirable to (i) vest, perfect or
confirm, of record
or otherwise, in First Place its right, title or interest in, to or
under any of
the rights, properties or assets of OC Financial acquired or to be
acquired by
First Place as a result of, or in connection with, the Merger, or
(ii) otherwise
carry out the purposes of this Agreement, OC Financial, and its
proper officers
and directors, shall be deemed to have granted to First Place an
irrevocable
power of attorney to execute and deliver all such proper deeds,
assignments and
assurances in law and to do all acts necessary or proper to vest,
perfect or
confirm title to and possession of such rights, properties or
assets in First
Place, consummate the Merger or otherwise to carry out the purposes
of this
Agreement, and the proper officers and directors of First Place are
fully
authorized in the name of First Place or otherwise to take any and
all such
action.
2
<PAGE>
ARTICLE II
CONSIDERATION; ELECTION AND EXCHANGE PROCEDURES
2.1
CONVERSION OF
SHARES. At the Effective Time, by virtue of the Merger
and without any action on the part of a holder of shares of OC
Financial common
stock, $0.01 par value per share ("OC Financial Common Stock"):
(a) OC FINANCIAL
COMMON STOCK. Subject to Sections 2.1(b), 2.2,
2.4, 2.5, 2.6 and 2.7, each share of OC Financial Common Stock
issued and
outstanding immediately prior to the Effective Time (EXCLUDING: (i)
those shares
of OC Financial Common Stock held by a Dissenting Stockholder
(defined in
Section 2.7) asserting their Dissenters' Rights as set forth in
Section 2.7;
(ii) OC Financial Common Stock held as treasury shares; and (iii)
all shares of
OC Financial Common Stock that are owned directly or indirectly by
First Place
or OC Financial or any of their respective Subsidiaries (other than
Trust
Account Shares (defined in Section 2.1(b)) (collectively, the
"Excluded
Shares")) shall be converted into, and shall be canceled in
exchange for .9615
shares (the "Per Share Stock Consideration") of First Place common
stock, par
value $0.01 per share ("First Place Common Stock").
The
aggregate consideration ("Aggregate Merger Consideration") to
the
holders of OC Financial Common Stock will be comprised of all the
issued and
outstanding shares of OC Financial Common Stock converting into the
right to
receive the Per Share Stock Consideration ("Stock Consideration").
In addition,
the Aggregate Merger Consideration may be adjusted in accordance
with Section
3.11(c).
(b) At the
Effective Time, all shares of OC Financial Common Stock
that are owned by OC Financial as treasury stock and all shares of
OC Financial
Common Stock that are owned directly or indirectly by First Place
or OC
Financial or any of their respective Subsidiaries (other than
shares of OC
Financial Common Stock held directly or indirectly in trust
accounts, managed
accounts and the like or otherwise held in a fiduciary capacity
that are
beneficially owned by third parties, whether held directly or
indirectly by
First Place or OC Financial, as the case may be, being referred to
herein as
"Trust Account Shares") shall be cancelled and shall cease to exist
and no stock
of First Place or other consideration shall be delivered in
exchange therefore.
All shares of First Place Common Stock that are owned by OC
Financial or any of
its Subsidiaries (other than Trust Account Shares), if any, shall
become
treasury stock of First Place.
(c) ADJUSTMENT
BASED UPON OC FINANCIAL'S STOCKHOLDERS' EQUITY. If
as of the calendar month ending immediately before the Effective
Time (providing
such Effective Time is after the 15th day of the month and if not
the case, the
previous calendar month) the OC Financial stockholders' equity (as
calculated in
Section 7.2(c)) is less than $5,700,000 (but not less than
$5,200,000) the Per
Share Stock Consideration ratio of .9615 shall be adjusted by 1.2
times the
percentage by which the stockholders' equity is less than
$5,700,000 (but not
less than $5,200,000). For example, if stockholders' equity is 1%
less than
$5,700,000, the Per Share Stock Consideration ratio would be .9500,
which ratio
is calculated by subtracting an amount equal to 1.2% of .9615 from
.9615.
3
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2.2
EXCHANGE
PROCEDURES.
(a) MAILING OF
TRANSMITTAL MATERIAL. Provided that OC Financial
has delivered, or caused to be delivered, to the Exchange Agent all
information
which is necessary for the Exchange Agent to perform its
obligations as
specified herein, First Place shall instruct the Exchange Agent to,
no later
than 15 business days after the Closing Date, mail or make
available to each
holder of record as of the Effective Time of a stock certificate or
certificates
representing shares of OC Financial Common Stock ("Certificate"): a
notice and
letter of transmittal (which shall specify that delivery shall be
effected, and
risk of loss and title to the Certificates shall pass, only upon
proper delivery
of the Certificates to the Exchange Agent) advising such holder of
the
effectiveness of the Merger and the procedure for surrendering to
the Exchange
Agent such Certificate or Certificates in exchange for the
consideration set
forth in Section 2.1(a) hereof deliverable in respect thereof
pursuant to this
Agreement. A letter of transmittal will be properly completed only
if
accompanied by Certificates representing all shares of OC Financial
Common Stock
covered thereby, subject to the provisions of paragraph (d) of this
Section 2.2
hereof.
(b) FIRST PLACE
DELIVERIES. Prior to the Effective Time, for the
benefit of the holders of Certificates, First Place shall deliver
to the
Exchange Agent certificates evidencing the number of shares of
First Place
Common Stock issuable. The Exchange Agent shall not be entitled to
vote or
exercise any rights of ownership with respect to the shares of
First Place
Common Stock held by it from time to time hereunder, except that it
shall
receive and hold all dividends or other distributions paid or
distributed with
respect to such shares for the account of the persons entitled
thereto.
(c) EXCHANGE
AGENT DELIVERIES. Each holder of an outstanding
Certificate or Certificates who has surrendered such Certificate or
Certificates
to the Exchange Agent will, upon acceptance thereof by the Exchange
Agent, be
entitled to a certificate or certificates representing the number
of whole
shares of First Place Common Stock (and including, payment for
fractional shares
under Section 2.4 hereof) and, if such holder's shares of OC
Financial Common
Stock have been converted into First Place Common Stock, any other
distribution
theretofore paid with respect to First Place Common Stock issuable
in the
Merger, in each case without interest. The Exchange Agent shall
accept such
Certificates upon compliance with such reasonable terms and
conditions as the
Exchange Agent may impose to effect an orderly exchange thereof in
accordance
with normal exchange practices. Each outstanding Certificate which
prior to the
Effective Time represented OC Financial Common Stock and which is
not
surrendered to the Exchange Agent in accordance with the procedures
provided for
herein shall, except as otherwise herein provided, until duly
surrendered to the
Exchange Agent be deemed to evidence ownership of the number of
shares of First
Place Common Stock into which such OC Financial Common Stock shall
have been
converted. After the Effective Time, there shall be no further
transfer on the
records of OC Financial of Certificates representing shares of OC
Financial
Common Stock and if such Certificates are presented to OC Financial
for
transfer, they shall be cancelled against delivery of certificates
for First
Place Common Stock or cash as hereinabove provided in this Section.
No dividends
which have been declared will be remitted to any person entitled to
receive
shares of First Place Common Stock until such person surrenders the
Certificate
or Certificates representing OC Financial Common Stock, at which
time such
dividends shall be remitted to such person, without interest.
4
<PAGE>
(d) LOST OR
DESTROYED CERTIFICATES; ISSUANCES OF FIRST PLACE
COMMON STOCK IN NEW NAMES. The Exchange Agent and First Place, as
the case may
be, shall not be obligated to deliver cash and/or a certificate or
certificates
representing shares of First Place Common Stock to which a holder
of OC
Financial Common Stock would otherwise be entitled as a result of
the Merger
until such holder surrenders the Certificate or Certificates
representing the
shares of OC Financial Common Stock for exchange as provided in
this Section 2.2
hereof, or, in default thereof, an appropriate affidavit of loss
and indemnity
agreement and/or a bond in an amount as may be reasonably required
in each case
by First Place. If any certificates evidencing shares of First
Place Common
Stock are to be issued in a name other than that in which the
Certificate
evidencing OC Financial Common Stock surrendered in exchange
therefore is
registered, it shall be a condition of the issuance thereof that
the Certificate
so surrendered shall be properly endorsed or accompanied by an
executed form of
assignment separate from the Certificate and otherwise in proper
form for
transfer and that the person requesting such exchange pay to the
Exchange Agent
any transfer or other tax required by reason of the issuance of a
certificate
for shares of First Place Common Stock in any name other than that
of the
registered holder of the Certificate surrendered or otherwise
establish to the
satisfaction of the Exchange Agent that such tax has been paid or
is not
payable.
2.3
RIGHTS AS
STOCKHOLDERS; STOCK TRANSFERS. At the Effective Time,
holders of OC Financial Common Stock shall cease to be, and shall
have no rights
as, stockholders of OC Financial other than to receive the
consideration
provided under this Article II hereof. After the Effective Time,
there shall be
no transfers on the stock transfer books of OC Financial or the
Surviving
Corporation of shares of OC Financial Common Stock.
2.4
NO FRACTIONAL
SHARES. Notwithstanding any other provision of this
Agreement, neither certificates nor scrip for fractional shares of
First Place
Common Stock shall be issued in the Merger. Each holder of OC
Financial Common
Stock who otherwise would have been entitled to a fraction of a
share of First
Place Common Stock (after taking into account all Certificates
delivered by such
holder) shall receive in lieu thereof cash (without interest) in an
amount
determined by multiplying the fractional share interest to which
such holder
would otherwise be entitled by $13.00, rounded to the nearest whole
cent. No
such holder shall be entitled to dividends, voting rights or any
other rights in
respect of any fractional share.
2.5
ANTI-DILUTION
PROVISIONS. If, between the date hereof and the
Effective Time, the shares of First Place Common Stock shall be
changed into a
different number or class of shares by reason of any
reclassification,
recapitalization, split-up, combination, exchange of shares or
readjustment, or
a stock dividend thereon shall be declared with a record date
within said period
(a "Capital Change"), the Per Share Stock Consideration shall be
adjusted
accordingly.
2.6
WITHHOLDING
RIGHTS. First Place (through the Exchange Agent, if
applicable) shall be entitled to deduct and withhold from any
amounts otherwise
payable pursuant to this Agreement to any holder of shares of OC
Financial
Common Stock such amounts as First Place is required under the Code
or any
state, local or foreign tax law or regulation thereunder to deduct
and withhold
with respect to the making of such payment. Any amounts so withheld
shall be
treated for all purposes of this Agreement as having been paid to
the holder of
OC Financial Common Stock in respect of which such deduction and
withholding was
made by First Place.
5
<PAGE>
2.7
DISSENTERS'
RIGHTS. (a) Each share of OC Financial Common Stock that
is held by a stockholder ("Dissenting Stockholder") who properly
exercises and
perfects the right to demand and receive payment of the fair value
for such
share of OC Financial Common Stock (a "Dissenting Share") in
accordance with
Title 3, Subtitle 2 of the MGCL ("Dissenters Rights") shall not be
converted
into or exchanged for a right to receive any part of the Aggregate
Merger
Consideration pursuant to this Agreement, but instead shall be
deemed converted
as of the Effective Time into the right to receive such amount as
shall be
determined to be payable pursuant to Dissenters Rights in
accordance with the
applicable provisions of the MGCL, without interest (the "Dissenter
Payment").
Any Dissenter Payment for each Dissenting Share shall be paid by
the Surviving
Corporation in accordance with the applicable provisions of the
MGCL. In the
case of any Dissenting Shares held by a shareholder who effectively
withdraws
his/her exercise of Dissenters Rights in accordance with the
applicable
provisions of the MGCL or who fails to file a petition for
appraisal within
fifty (50) days after the Effective Time, such shares shall no
longer be deemed
Dissenting Shares but shall be deemed to have been converted as of
the Effective
Time into the right to receive their portion of the Aggregate
Merger
Consideration in accordance with the provisions of this Article II,
and the
provisions of this Section 2.7 shall not apply to such shares or
such
stockholder.
(b) OC Financial
shall (i) give First Place prompt written notice
of the receipt of any notice from a stockholder purporting to
exercise any
Dissenters' Rights or that OC Financial has reason to believe may
assert
Dissenters' Rights, (ii) not settle or offer to settle any demand
for payment
without the prior written consent of First Place, which shall not
be
unreasonably withheld; and (iii) not waive any failure to comply
strictly with
any procedural requirements of Title 3, Subtitle 2 of the MGCL.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Prior to
the date hereof, OC Financial has delivered to First Place a
schedule setting forth, among other things, items the disclosure of
which is
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 Article III hereof or to
one or more
of its covenants contained in Article V hereof or additional
agreements in
Article VI hereof ("OC Financial Disclosure Schedules"). OC
Financial hereby
represents and warrants to First Place that each of the
following
representations and warranties in this Article III of this
Agreement, which
include and incorporate the exceptions set forth on the OC
Financial Disclosure
Schedules, are true and correct as of the date of this Agreement
and as of the
Closing Date, except to the extent such representations and
warranties expressly
are made as of specific date and time (in which case such
representations and
warranties will be true and correct as of such date and time):
6
<PAGE>
3.1 CORPORATE ORGANIZATION.
(a) OC Financial
is a corporation duly organized, validly existing
and in good standing under the laws of the State of Maryland. OC
Financial has
the corporate power and authority to own or lease all of its
properties and
assets and to carry on its business as it is now being conducted,
and is duly
licensed or qualified to do business in each jurisdiction in which
the nature of
the business conducted by it or the character or the location of
the properties
and assets owned or leased by it makes such licensing or
qualification
necessary, except where the failure to be so licensed or qualified
would not
have a Material Adverse Effect (as defined in Section 8.1(e)
hereof). OC
Financial is duly registered as a savings and loan holding company
under the
Home Owners' Loan Act ("HOLA"). The Articles of Incorporation and
Bylaws of OC
Financial, copies of which have previously been delivered to First
Place, are
true, complete and correct copies of such documents as in effect as
of the date
of this Agreement. As used in this Agreement, the word "Subsidiary"
when used
with respect to any party means any corporation, partnership,
association,
organization, trust or other organization, whether incorporated
or
unincorporated, which is consolidated with such party for financial
reporting
purposes.
(b) OC Bank is a
federal savings association that is duly
organized and validly existing under the laws of the United States
of America
and the rules and regulations of the U.S. Office of Thrift
Supervision ("OTS").
OC Bank has in effect all federal, state, local and foreign
governmental
authorizations necessary for it to own or lease its properties and
assets and to
carry on its business as now conducted. The deposit accounts of OC
Bank are
insured by the Federal Deposit Insurance Corporation (the "FDIC")
through the
Deposit Insurance Fund ("DIF") in the manner and to the maximum
extent permitted
by law, and all premiums and assessments required to be paid in
connection
therewith have been paid when due by OC Bank. Each of OC
Financial's
Subsidiaries is duly organized, validly existing and in good
standing under the
laws of its jurisdiction of incorporation or organization. Each of
OC
Financial's Subsidiaries has the corporate power and authority to
own or lease
all of its properties and assets and to carry on its business as it
is now being
conducted and is duly licensed or qualified to do business in each
jurisdiction
in which the nature of the business conducted by it or the
character or the
location of the properties and assets owned or leased by it makes
such licensing
or qualification necessary, except where the failure to be so
licensed or
qualified would not have a Material Adverse Effect. The Charter,
Bylaws and
similar governing documents of each Subsidiary of OC Financial,
copies of which
have previously been delivered to First Place, are true, complete
and correct
copies of such documents as in effect as of the date of this
Agreement.
(c) The minute
books of OC Financial and each of its Subsidiaries
contain true, complete and accurate records in all material
respects of all
meetings and other corporate actions held or taken since April 1,
2005 of its
respective stockholders and boards of directors (including
committees of their
respective boards of directors). OC Financial has made available to
First Place
correct and complete copies of all minutes of the board of
directors of OC
Financial and its Subsidiaries since April 1, 2005, except for such
minutes that
reflect deliberation of the transactions contemplated by this
Agreement.
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3.2
CAPITALIZATION.
(a) The
authorized capital stock of OC Financial consists of
20,000,000 shares of OC Financial Common Stock and 5,000,000 shares
of OC
Financial preferred stock, par value $0.01 per share ("OC Financial
Preferred
Stock"). No other capital stock is authorized. As of the date of
this Agreement,
there are (x) 560,198 shares of OC Financial Common Stock issued
and outstanding
and no shares of OC Financial Common Stock held in OC Financial's
treasury; (y)
no shares of OC Financial Preferred Stock are issued or
outstanding; and (z) no
shares of OC Financial Common Stock are reserved for issuance upon
exercise of
outstanding stock options. All of the issued and outstanding shares
of OC
Financial Common Stock have been duly authorized and validly issued
and are
fully paid, nonassessable and free of preemptive rights. Except as
referred to
above, OC Financial does not have and is not bound by any
outstanding
subscriptions, options, warrants, calls, commitments, contracts or
agreements of
any character that could require OC Financial to issue, sell or
otherwise cause
to become outstanding any shares of OC Financial Common Stock or OC
Financial
Preferred Stock or any other equity security of OC Financial or any
securities
representing the right to purchase or otherwise receive any shares
of OC
Financial Common Stock or any other equity security of OC
Financial. There are
no outstanding or authorized stock appreciation, phantom stock,
profit
participation or similar rights with respect to OC Financial.
(b) SCHEDULE
3.2(B) of the OC Financial Disclosure Schedules sets
forth a true and correct list of all of the Subsidiaries of OC
Financial and OC
Bank as of the date of this Agreement, including the number of
shares of capital
stock of each Subsidiary issued and the holder(s) of such shares.
OC Financial
and OC Bank each own, directly or indirectly, all of the issued and
outstanding
shares of the capital stock of each of their respective such
Subsidiaries, free
and clear of all liens, charges, encumbrances, pledges or security
interests
whatsoever, and all of such shares of capital stock are duly
authorized and
validly issued and are fully paid, nonassessable and free of
preemptive rights.
No Subsidiary of OC Financial or OC Bank has or is bound by any
outstanding
subscriptions, options, warrants, calls, commitments or agreements
of any
character calling for the purchase or issuance of any shares of
capital stock or
any other equity security of such Subsidiary or any securities
representing the
right to purchase or otherwise receive any shares of capital stock
or any other
equity security of such Subsidiary.
3.3
AUTHORITY; NO
VIOLATION.
(a) OC Financial
has full corporate power and authority to
execute, deliver and perform its obligations under this Agreement
and to
consummate the transactions contemplated hereby. The execution and
delivery of
this Agreement and the consummation of the Merger and the
transactions
contemplated hereby have been duly and validly approved by the
board of
directors of OC Financial. The board of directors of OC Financial
has directed
that this Agreement be submitted to OC Financial's stockholders for
adoption at
a meeting of such stockholders and, except for the adoption of this
Agreement by
the requisite vote of OC Financial's stockholders, no other
corporate
proceedings (except for regulatory approvals) on the part of OC
Financial are
necessary to approve this Agreement and to consummate the
transactions
contemplated hereby. This Agreement has been duly and validly
executed and
delivered by OC Financial and (assuming due authorization,
execution and
delivery by First Place) constitutes a valid and binding obligation
of OC
Financial, enforceable against OC Financial in accordance with its
terms, except
as enforcement may be limited by general principles of equity
whether applied in
a court of law or a court of equity and by bankruptcy,
insolvency,
reorganization, moratorium, fraudulent transfer and similar laws
affecting
creditors' rights and remedies generally.
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(b) OC Bank has
full corporate power and authority to execute,
deliver and perform its obligations under the Bank Merger Agreement
and to
consummate the Subsidiary Merger and the transactions contemplated
thereby. The
execution and delivery of the Bank Merger Agreement and the
consummation of the
transactions contemplated thereby will be duly and validly approved
by the board
of directors of OC Bank and approved by the sole stockholder of OC
Bank. No
other corporate proceedings on the part of OC Bank will be
necessary to
consummate the transactions contemplated by the Bank Merger
Agreement. The Bank
Merger Agreement has been duly and validly executed and delivered
by OC Bank and
(assuming due authorization, execution and delivery by the Bank)
constitutes a
valid and binding obligation of OC Bank, enforceable against OC
Bank in
accordance with its terms, except as enforcement may be limited by
general
principles of equity whether applied in a court of law or a court
of equity and
by bankruptcy, insolvency, reorganization, receivership,
conservatorship,
moratorium, fraudulent transfer and similar laws affecting
creditors' rights and
remedies generally.
(c) Except as
set forth on SCHEDULE 3.3(C) of the OC Financial
Disclosure Schedules, neither the execution and delivery of this
Agreement by OC
Financial or the Bank Merger Agreement by OC Bank, nor the
consummation by OC
Financial or OC Bank, as the case may be, of the transactions
contemplated
hereby or thereby, nor compliance by OC Financial or OC Bank, as
the case may
be, with any of the terms or provisions hereof or thereof, will (i)
violate any
provision of the Articles of Incorporation or Bylaws of OC
Financial or the
Charter, bylaws or similar governing documents of any of its
Subsidiaries
(subject to the deletion of Section 10, "Certain Provisions
Applicable for Five
Years" contained in the Charter; OC Financial shall take all
necessary action to
remove and delete such section as soon as practicable from the date
hereof,
including, but not limited to, obtaining all requisite regulatory
approvals that
may be required in respect of said removal and deletion), or (ii)
assuming that
the consents and approvals referred to in Section 3.4 hereof are
duly obtained,
(x) violate any statute, code, ordinance, rule, regulation,
judgment, order,
writ, decree or injunction applicable to OC Financial or any of
its
Subsidiaries, or any of their respective properties or assets, or
(y) violate,
conflict with, result in a breach of any provision of or the loss
of any benefit
under, constitute a default (or an event which, with notice or
lapse of time, or
both, would constitute a default) under, result in the termination
of or a right
of termination or cancellation under, accelerate the performance
required by,
result in the obligation to sell or result in the creation of any
lien, pledge,
security interest, charge or other encumbrance upon any of the
respective
properties or assets of OC Financial or any of its Subsidiaries
under, any of
the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed
of trust, license, lease, agreement or other instrument or
obligation to which
OC Financial or any of its Subsidiaries is a party, or by which
they or any of
their respective properties or assets may be bound or affected,
except for any
violation, conflict, breach, default, acceleration, termination,
modification or
cancellation which, individually or in the aggregate, would not
have a Material
Adverse Effect on OC Financial or materially impact the terms and
conditions or
transactions contemplated hereby. First Place shall be approved as
a successor
lessee to any lease agreements.
9
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3.4
CONSENTS AND
APPROVALS. Except for (a) the filing of applications
with the OTS, and approval or non-objection of such applications by
the OTS, (b)
the filing with the SEC of the S-4 (defined in Section 3.13), which
includes the
OC Financial proxy statement/prospectus in definitive form relating
to the OC
Financial Stockholder Meeting to be held in connection with this
Agreement and
the Merger (the "Proxy Statement"), (c) the adoption of this
Agreement by the
requisite vote of the stockholders of OC Financial, (d) the filing
of the
Articles of Merger with the SDAT and the Certificate of Merger with
the Delaware
Secretary of State, and (e) such filings, authorizations or
approvals as may be
set forth in SCHEDULE 3.4 of the OC Financial Disclosure Schedules,
no consents
or approvals of or filings or registrations with any court,
administrative
agency or commission or other governmental authority or
instrumentality (each a
"Governmental Entity") or with any third party are necessary in
connection with
(1) the execution and delivery by OC Financial of this Agreement
and (2) the
consummation by OC Financial of the Merger and the other
transactions
contemplated hereby.
3.5
REPORTS. Except
as listed on SCHEDULE 3.5 of the OC Financial
Disclosure Schedules, OC Financial and each of its Subsidiaries
have timely
filed all material reports, registrations and statements, together
with any
amendments required to be made with respect thereto, that they were
required to
file since April 1, 2005 with (i) the OTS, (ii) the FDIC, (iii) any
other state
regulatory authority (each a "State Regulator") and (v) any
other
self-regulatory organization ("SRO") (collectively, the "Regulatory
Agencies"
and individually a "Regulatory Agency"), and all other material
reports and
statements required to be filed by them since April 1, 2005,
including, without
limitation, any report or statement required to be filed pursuant
to the laws,
rules or regulations of the United States, the OTS, the FDIC, any
State
Regulator or any SRO, and have paid all fees and assessments due
and payable in
connection therewith. Except for normal examinations conducted by a
Regulatory
Agency in the regular course of the business of OC Financial and
its
Subsidiaries and except as set forth in SCHEDULE 3.5 of the OC
Financial
Disclosure Schedules, no Regulatory Agency has initiated any
proceeding or, to
OC Financial's knowledge, investigation into the business or
operations of OC
Financial or any of its Subsidiaries since April 1, 2005. There is
no unresolved
material violation, criticism, or exception by any Regulatory
Agency with
respect to any report or statement relating to any examinations of
OC Financial
or any of its Subsidiaries.
3.6
FINANCIAL
STATEMENTS. OC Financial has previously delivered to First
Place copies of (a) the consolidated balance sheets of OC Financial
and its
Subsidiaries at September 30 for the fiscal years ended 2007 and
2006, and the
related consolidated statements of income, changes in stockholders'
equity and
cash flows for the fiscal years ended September 30, 2005 through
2007,
inclusive, in each case accompanied by the audit report of Beard
Miller Company
LLP, independent public accountants with respect to OC Financial,
and (b) the
unaudited consolidated balance sheets of OC Financial and its
Subsidiaries as of
December 31, 2007 and December 31, 2006 and the related unaudited
consolidated
statements of income, cash flows and changes in stockholders'
equity for the
three month periods then ended (collectively the "OC Financial
Statements"). The
December 31, 2007 consolidated balance sheet of OC Financial
(including the
related notes, where applicable) fairly presents the consolidated
financial
position of OC Financial and its Subsidiaries as of the date
thereof, and the
other financial statements referred to in this Section 3.6 hereof
(including the
10
<PAGE>
related notes, where applicable) fairly present, and the financial
statements
referred to in Section 6.13 hereof will fairly present (subject, in
the case of
the unaudited statements, to recurring audit adjustments normal in
nature and
amount and the absence of footnotes), the results of the
consolidated operations
and consolidated financial position of OC Financial and its
Subsidiaries for the
respective fiscal periods or as of the respective dates therein set
forth; each
of such statements (including the related notes, where applicable)
comply, and
the financial statements referred to in Section 6.13 hereof will
comply, in all
material respects with applicable accounting requirements (subject,
in the case
of the unaudited statements, to recurring audit adjustments normal
in nature and
amount and the absence of footnotes), and the financial statements
referred to
in Section 6.13 hereof will be, prepared in accordance with
generally accepted
accounting principles ("GAAP") (subject, in the case of the
unaudited
statements, to recurring audit adjustments normal in nature and
amount and the
absence of footnotes) consistently applied during the periods
involved, except
as indicated in the notes thereto. The fiscal year-end audits of OC
Financial
and its Subsidiaries have been conducted in accordance with
generally accepted
auditing standards of the United States of America. The books and
records of OC
Financial and its Subsidiaries have been, and are being, maintained
in all
material respects in accordance with GAAP and any other applicable
legal and
accounting requirements.
3.7
BROKER'S FEES.
Neither OC Financial nor any Subsidiary of OC
Financial nor any of their respective officers or directors has
employed any
broker or finder or incurred any liability for any broker's fees,
commissions or
finder's fees in connection with any of the transactions
contemplated by this
Agreement, except that OC Financial has engaged, and will pay a fee
or
commission to Keefe, Bruyette & Woods, Inc. ("KBW") in
accordance with the terms
of a letter agreement between KBW and OC Financial concerning the
Merger and the
issuance of an opinion regarding the fairness, from a financial
point of view,
of the Aggregate Merger Consideration to OC Financial stockholders,
a true,
complete and correct copy of which has been previously delivered by
OC Financial
to First Place.
3.8
ABSENCE OF
CERTAIN CHANGES OR EVENTS.
(a) Except as
may be set forth in SCHEDULE 3.8(A) of the OC
Financial Disclosure Schedules or as provided for in the OC
Financial
Statements, since September 30, 2007, (i) neither OC Financial nor
any of its
Subsidiaries has incurred any material liability, and (ii) no event
has occurred
which has caused, or is reasonably likely to cause, individually or
in the
aggregate, a Material Adverse Effect on OC Financial.
(b) Except as
set forth in SCHEDULE 3.8(B) of the OC Financial
Disclosure Schedules, since September 30, 2007, OC Financial and
its
Subsidiaries each (i) has been operated in the ordinary course of
business
consistent with past practice and (ii) has not made any changes in
its
respective capital or corporate structures, nor any material change
in its
methods of business operations.
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(c) Except as
set forth in SCHEDULE 3.8(C) of the OC Financial
Disclosure Schedules and to the extent permitted under Section
5.1(d)(i), since
September 30, 2007, neither OC Financial nor any of its
Subsidiaries has (i)
increased the wages, salaries, compensation, pension, or other
fringe benefits
or perquisites payable to any executive officer, employee, or
director from the
amount thereof in effect as of September 30, 2007 (which amounts
have been
previously disclosed to First Place), granted any severance or
termination pay,
entered into any contract to make or grant any severance or
termination pay,
granted any stock options or other derivative security or paid any
bonus or (ii)
suffered any strike, work stoppage, slow-down, or other labor
disturbance or
(iii) taken any of the actions set forth in Section 5.1 hereof.
(d) Since
September 30, 2007, neither OC Financial nor any of its
Subsidiaries has had any layoffs, work force reductions or
otherwise terminated
the employment of its employees, other than in the ordinary course
of business,
consistent with past practice.
3.9
LEGAL
PROCEEDINGS.
(a) Except as
set forth in SCHEDULE 3.9(A) of the OC Financial
Disclosure Schedules, neither OC Financial nor any of its
Subsidiaries is a
party to any, and there are no pending or, to OC Financial's
knowledge,
threatened, legal, administrative, arbitral or other proceedings,
claims,
actions, suits or governmental or regulatory investigations (i) of
any nature
against OC Financial or any of its Subsidiaries or (ii) challenging
the validity
or propriety of the transactions contemplated by this
Agreement.
(b) Except as
set forth in SCHEDULE 3.9(B) of the OC Financial
Disclosure Schedules, there is no injunction, order, judgment,
decree, or
regulatory restriction imposed upon OC Financial, any of its
Subsidiaries or the
assets of OC Financial or any of its Subsidiaries, which has had,
or could
reasonably be expected to have, a Material Adverse Effect on OC
Financial.
(c) Except as
set forth in SCHEDULE 3.9(C) of the OC Financial
Disclosure Schedules, there are no actions, suits, claims,
proceedings,
investigations or assessments of any kind pending, or to OC
Financial's
knowledge, threatened against any of the directors or officers of
OC Financial
or any of its Subsidiaries in their capacities as such, and no
director or
officer of OC Financial or any of its Subsidiaries currently is
being
indemnified or seeking to be indemnified by OC Financial or any of
its
Subsidiaries pursuant to applicable law or their governing
documents.
3.10
TAXES.
(a) (i) All Tax
Returns for which the statute of limitations for
assessment has not expired that are required to be filed on or
before the
Closing Date (taking into account any extensions of time within
which to file
which have not expired) by or with respect to OC Financial and its
Subsidiaries
have been or will be timely filed on or before the Closing Date;
(ii) all such
Tax Returns are or will be true and complete in all material
respects; (iii) all
Taxes owed by OC Financial or its Subsidiaries (whether or not
shown or required
to be shown on any Tax Return referred to in clause (i)) have been
or will be
timely paid in full; (iv) the Tax Returns referred to in clause (i)
for which
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the statute of limitations for assessment has not expired have not
been examined
by the IRS or the appropriate Tax authority; (v) all deficiencies
asserted or
assessments made as a result of examinations conducted by any
taxing authority
have been paid in full; (vi) no issues that have been raised by the
relevant
taxing authority in connection with the examination of any of the
Tax Returns
referred to in clause (i) are currently pending; and (vii) neither
OC Financial
nor any Subsidiary has extended any statutes of limitation with
respect to the
assessment of any Taxes of OC Financial or any of its Subsidiary,
other than
extensions that have expired.
(b) OC Financial
has made available to First Place (i) true and
correct copies of the United States federal, state, local and
foreign income Tax
Returns filed by OC Financial and its Subsidiaries for each of the
three most
recent fiscal years for which such returns have been filed; and
(ii) any audit
report issued within the last three years relating to Taxes due
from or with
respect to OC Financial and its Subsidiaries. Since April 1, 2005,
no claim has
been made by a taxing authority in a jurisdiction where OC
Financial and its
Subsidiaries do not file Tax Returns that OC Financial and its
Subsidiaries is
or may be subject to taxation by that jurisdiction.
(c) Neither OC
Financial nor any of its Subsidiaries has liability
with respect to income, franchise or similar Taxes that accrued on
or before the
end of the most recent period covered by the OC Financial
Statements in excess
of the amounts accrued or subject to a reserve with respect thereto
that are
reflected in the OC Financial Statements.
(d) SCHEDULE
3.10(D) of the OC Financial Disclosure Schedules list
all combined, consolidated or unitary federal, state, local, or
foreign returns
filed by or with respect to OC Financial and any of its
Subsidiaries on or after
April 1, 2005.
(e) Except as
set forth in SCHEDULE 3.10(E) of the OC Financial
Disclosure Schedules, neither OC Financial nor any of its
Subsidiaries is a
party to any Tax allocation or sharing agreement or otherwise has
any liability
for the Taxes of any person other than OC Financial or any of its
Subsidiaries.
Any such Tax allocation or sharing agreement will be terminated on
or before the
Closing Date. No liability will be created for OC Financial or any
of its
successors after the Closing Date as a result of the application of
Treasury
Regulations section 1.1502-6. No liability will be created for OC
Financial or
its successors after the Closing Date to reimburse any Subsidiary
Affiliates for
any Taxes.
(f) No closing
agreements, private letter rulings, technical
advice memoranda or similar agreements or rulings have been entered
into or
issued by any taxing authority with respect to OC Financial or any
of its
Subsidiaries.
(g) Except for
the amounts calculated and the detailed disclosure
for each Person set forth on SCHEDULE 3.10(G) of the OC Financial
Disclosure
Schedules, neither OC Financial nor any of its Subsidiaries
maintains any
compensation plans, programs or arrangements the payments under
which would not
reasonably be expected to be deductible as a result of the
limitations under
Section 162(m) or Section 280G of the Code and the regulations
issued
thereunder. Neither OC Financial nor any of its Subsidiaries has
ever been, an
"S corporation" within the meaning of Section 1361 of the Code.
Neither OC
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Financial nor any of its Subsidiaries has filed a consent under
Code ss.341(f)
concerning collapsible corporations. Neither OC Financial nor any
of its
Subsidiaries has been a United States real property holding
corporation within
the meaning of Code ss.897(c)(2) during the applicable period
specified in Code
ss.897(c)(1)(A)(ii). Since April 1, 2005, neither OC Financial nor
any of its
Subsidiaries (A) has been a member of an affiliated group filing a
consolidated
federal income tax return (other than a group the common parent of
which was OC
Financial) or (B) has any liability for the taxes of any person
(other than OC
Financial or any of its Subsidiaries) under Reg. ss.1.1502-6 (or
any similar
provision of state, local, or foreign law), as a transferee or
successor, by
contract, or otherwise.
(h) Except as
set forth on SCHEDULE 3.10(H) of the OC Financial
Disclosure Schedules, since April 1, 2005, neither OC Financial nor
any of its
Subsidiaries has agreed to, or is required to, make any adjustments
pursuant to
Section 481(a) of the Code or any similar provision of law by
reason of a change
in accounting method initiated by OC Financial or any of its
Subsidiaries or
proposed by any taxing authority, and no application is pending
with any taxing
authority requesting permission for any changes in accounting
methods that
related to business or operations of OC Financial or any of its
Subsidiaries.
(i) Neither OC
Financial nor any of its Subsidiaries is required
to make any disclosure to any taxing authority with respect to a
"listed
transaction" pursuant to Section 1.6011-4(b)(2) of the Treasury
Regulations.
(j) As of the
date hereof, OC Financial has no reason to believe
that any conditions exist that might prevent or impede the Merger
from
qualifying as reorganization within the meaning of Section 368(a)
of the Code.
(k) Each of OC Financial and its
Subsidiaries has complied in all
respects with all applicable laws, rules and regulations relating
to the
withholding of Taxes and has duly and timely withheld from employee
salaries,
wages and other compensation paid to independent contractors,
creditors,
stockholders, or other third parties and has paid over to the
appropriate taxing
authorities all amounts required to be so withheld and paid over
for all periods
under applicable laws.
(l) There are no
liens or other encumbrances on any of the assets
of OC Financial or its Subsidiaries that arose in connection with
any failure
(or alleged failure) to pay Tax.
(m) Except as
set forth in SCHEDULE 3.10(M) of the OC Financial
Disclosure Schedules, which Schedule lists the amount and the
expiration dates
of consolidated net operating losses, net capital losses, net
unrealized
built-in losses, foreign tax credits, minimum tax credits,
investment tax
credits and other tax credits carryovers of the OC Financial Group
allocable to
OC Financial and each of its Subsidiaries, OC Financial Group does
not have any
net operating losses or other tax attributes that are currently
subject to
limitation under Section 382, 383 or 384 of the Code.
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(n) No liability
will be created for OC Financial or its
successors after the Closing Date as a result of the triggering
into income or
gain of deferred inter-company transactions or excess loss accounts
as a result
of the application of Treasury Regulations sections 1.1502-13 and
1.152-19 or
related to items of income or gain arising with respect to any
interest in a
Subsidiary which is not a member of the OC Financial Group.
(o) Neither OC
Financial nor any of its Subsidiaries has
investment tax credits or overall foreign losses allocable to it
subject to
recapture.
(p) Except as
set forth in SCHEDULE 3.10(P) of the OC Financial
Disclosure Schedules, each of OC Financial and its Subsidiaries has
made
estimated Tax payments of federal and state income and franchise
Taxes on the
applicable estimated Tax payment dates at level sufficient not to
cause OC
Financial or its Subsidiaries to be liable for any penalties
attributable to
underpayment of estimated Taxes, and OC Financial and its
Subsidiaries will
continue to make timely estimated Tax payments at levels sufficient
to not cause
OC Financial or any successor to OC Financial to be liable for any
such
penalties.
(q) None of OC
Financial's Subsidiaries will be required to
include any item of income in, or exclude any item of deduction
from, taxable
income for any taxable period (or portion thereof) ending after the
Closing Date
as a result of (i) any "closing agreement" as described in Code
ss.7121 (or any
corresponding provisions of state, local or foreign income Tax law;
(ii) any
inter-company transactions or excess loss account (or corresponding
provision of
state, local or foreign income Tax law); (iii) any installment sale
or open
transaction made on or prior to the Closing Date; or (iv) as a
result of any
prepaid amount received on or prior to the Closing Date.
(r) Neither OC
Financial nor any of its Subsidiaries has
distributed stock of another "person" as defined under Code
ss.7701(a)(1), or
has had its stock distributed by another "person" as defined under
Code
ss.7701(a)(1), in a transaction that was purported or intended to
be governed in
whole or in part by Code ss.355 or Code ss.361.
For the
purposes of this Agreement, "Tax" or "Taxes" shall mean all
taxes,
charges, fees, levies, penalties or other assessments imposed by
any United
States federal, state, local or foreign taxing authority,
including, but not
limited to income, excise, property, sales, transfer, franchise,
payroll,
withholding, social security or other taxes, including any
interest, penalties
or additions attributable thereto.
For
purposes of this Agreement, "Tax Return" shall mean any return,
report, information return or other document (including any related
or
supporting information) with respect to Taxes.
For
purposes of this Agreement, "OC Financial Group" shall mean any
"affiliated group" (as defined in Section 1504(a) of the Code
without regard to
the limitation contained in Section 1504(b) of the Code that
includes OC
Financial and its Subsidiaries or any predecessor of or any
successor to OC
Financial (or to another such predecessor or successor) since April
1, 2005.
For
purposes of this Agreement, "Subsidiary Affiliates" shall mean
any
stockholders, directors, officers, or employees of any of OC
Financial or its
Subsidiaries.
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3.11
EMPLOYEE BENEFIT PLAN
MATTERS.
(a) SCHEDULE
3.11(A) of the OC Financial Disclosure Schedules sets
forth a true and complete list of each employee benefit plan, as
the term is
defined in Section 3 of the Employee Retirement Income Security Act
of 1974, as
amended ("ERISA"), and any other employee benefit arrangement or
agreement that
is sponsored, maintained or contributed to, or required to be
contributed to, as
of the date of this Agreement (collectively referred to as the
"Plans") by OC
Financial, any of its Subsidiaries or by any trade or business,
whether or not
incorporated (an "ERISA Affiliate"), all of which together with OC
Financial
would be deemed a "single employer" within the meaning of Section
4001 of ERISA
or Section 414 of the Code, for the benefit of any employee or
former employee
of OC Financial, any Subsidiary or any ERISA Affiliate.
(b) OC Financial
has heretofore delivered to First Place true and
complete copies of each of the Plans and related trust instruments
and all
amendments thereto, the most recent summary plan description and
summaries of
material modifications thereto, underlying insurance contracts and
all other
related documents thereto, including, but not limited to (i) the
actuarial
report for any Plan (if applicable) for each of the last three (3)
years, (ii)
the most recent determination letter from the Internal Revenue
Service ("IRS")
(if applicable) for any Plan, (iii) the most recent three (3)
years' annual
reports (Form 5500), together with all schedules, as required,
filed with the
IRS or Department of Labor ("DOL") for any Plan, (iv) any financial
statements
and opinions required by Section 103(e)(3) of ERISA with respect to
each Plan,
and (v) for any Plan which for ERISA purposes is a "top-hat" plan,
a copy of any
top-hat filing with DOL.
(c) Except as
set forth in SCHEDULE 3.11(C) of the OC Financial
Disclosure Schedules, (i) each of the Plans has been operated and
administered
in all material respects in accordance with its terms and
applicable law,
including but not limited to ERISA and the Code (any liability in
excess of
$25,000 arising as a result of a breach of this representation
shall be deemed
to be material and shall result in a reduction of the Aggregate
Merger
Consideration equal to the entire liability), (ii) each of the
Plans intended to
be "qualified" within the meaning of Section 401(a) of the Code
either (1) has
received a favorable determination letter from the IRS, or (2) is
or will be the
subject of an application for a favorable determination letter, and
OC Financial
is not aware of any circumstances likely to result in the
revocation or denial
of any such favorable determination letter, (iii) no Plan provides
benefits,
including without limitation death or medical benefits (whether or
not insured),
with respect to current or former employees of OC Financial, its
Subsidiaries or
any ERISA Affiliate beyond their retirement or other termination of
service,
other than (w) coverage mandated by applicable law, (x) death
benefits or
retirement benefits under any "employee pension plan," as that term
is defined
in Section 3(2) of ERISA, (y) deferred compensation benefits
accrued as
liabilities on the books of OC Financial, its Subsidiaries or the
ERISA
Affiliates or (z) benefits the full cost of which is borne by the
current or
former employee (or his beneficiary), (iv) neither OC Financial nor
any ERISA
Affiliate sponsors a Plan that is subject to Title IV of ERISA and
no Plan of OC
Financial or any ERISA affiliate is a "multiemployer pension plan,"
as such term
is defined in Section 3(37) of ERISA, (v) each Plan that is a
"nonqualified
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deferred compensation plan" (as defined in Section 409A(d)(1) of
the Code) and
which has not been terminated has been operated since January 1,
2005 in good
faith compliance with Section 409A of the Code, Internal Revenue
Service Notice
2005-1 and the regulations issued under Section 409A of the Code,
(vi) each Plan
can be terminated without payment of any additional contribution or
amount,
other than contributions and amounts required by the terms of the
Plan without
regard to the Plan's termination, and without vesting or
acceleration of any
benefits provided under such Plan, other than vesting required by
the Code as a
result of a qualified Plan's termination, (vii) all contributions
or other
amounts payable by OC Financial, its Subsidiaries or any ERISA
Affiliates as of
the Effective Time with respect to each Plan in respect of current
or prior plan
years have been paid or accrued in accordance with GAAP and Section
412 of the
Code, (viii) neither OC Financial, its Subsidiaries nor any ERISA
Affiliate has
engaged in a transaction in connection with which OC Financial, its
Subsidiaries
or any ERISA Affiliate could be subject to either a civil penalty
assessed
pursuant to Section 409 or 502(i) of ERISA or a tax imposed
pursuant to Section
4975 or 4976 of the Code, (ix) there are no pending, or, to OC
Financial's
knowledge, threatened or anticipated proceedings, investigations or
claims
(other than routine claims for benefits) by, on behalf of or
against any of the
Plans or any trusts related thereto and (x) the consummation of the
transactions
contemplated by this Agreement will not (1) entitle any current or
former
employee or officer of OC Financial or any ERISA Affiliate to
severance pay,
termination pay or any other payment, except as expressly provided
in this
Agreement or (2) accelerate the time of payment or vesting or
increase the
amount of compensation due any such employee or officer.
3.12
REGULATORY REPORTS. OC
Financial has previously made available to
First Place an accurate and complete copy of each (a) offering
memorandum, final
registration statement, prospectus, report, schedule, consent
solicitations or
notices and definitive proxy statement filed since April 1, 2005 by
OC Financial
or its Subsidiaries with their Regulatory Agencies (the "OC
Financial Reports")
and (b) communication mailed by OC Financial to its stockholders
since April 1,
2005, and no such offering memorandum, registration statement,
prospectus,
report, schedule, consent solicitations or notices, proxy statement
or
communication contained any untrue statement of a material fact or
omitted to
state any material fact required to be stated therein or necessary
in order to
make the statements therein not misleading, except that information
as of a
later date shall be deemed to modify information as of an earlier
date. Except
as set forth in SCHEDULE 3.5 of the OC Financial Disclosure
Schedules, OC
Financial and its Subsidiaries have timely filed all OC Financial
Reports and
other documents required to be filed by it under the laws, rules or
regulations
of the OTS and other Regulatory Agencies, and, as of their
respective dates, all
OC Financial Reports complied in all material respects with the
published rules
and regulations of the OTS and other Regulatory Agencies with
respect thereto.
3.13
OC FINANCIAL
INFORMATION. The information provided by and relating
to OC Financial and its Subsidiaries to be contained in, or
incorporated by
reference in, the Proxy Statement and First Place's Registration
Statement on
Form S-4 (the "S-4"), or in any other document filed with any other
regulatory
agency in connection herewith, will not contain any untrue
statement of a
material fact or omit to state a material fact necessary to make
the statements
therein not misleading. The information included in, or
incorporated by
reference in, the sections of the Proxy Statement and provided by
OC Financial
for inclusion in the S-4 will comply in all material respects with
the
provisions of the Securities Act of 1933, as amended ("Securities
Act") and the
Securities Exchange Act of 1934, as amended ("Exchange Act") and
the rules and
regulations thereunder.
17
<PAGE>
3.14
OWNERSHIP OF FIRST
PLACE COMMON STOCK. Except as set forth in
SCHEDULE 3.14 of the OC Financial Disclosure Schedules, none of OC
Financial,
its Subsidiaries or their respective directors, officers or
affiliates, (i)
beneficially own, directly or indirectly, or (ii) are a party to
any agreement,
arrangement or understanding for the purpose of acquiring, holding,
voting or
disposing of, in each case, any shares of capital stock of First
Place.
3.15
COMPLIANCE WITH
APPLICABLE LAW. Each of OC Financial and its
Subsidiaries: (i) is in material compliance with all applicable
federal, state,
local and foreign statutes, laws, regulations, policies,
ordinances, rules,
judgments, orders or decrees applicable thereto or to the employees
conducting
such businesses, including, without limitation, the Equal Credit
Opportunity Act
of 1974 and the regulations promulgated thereunder, the Truth in
Lending Act and
Regulation Z promulgated thereunder, the Fair Housing Act, the
Community
Reinvestment Act, the Home Mortgage Disclosure Act, the Real Estate
Settlement
Procedures Act, the Fair Debt Collection Practices Act, the Bank
Secrecy Act,
the PATRIOT Act and all other applicable fair lending laws and
other laws
relating to discriminatory business practices; (ii) hold all
material licenses,
franchises, permits and authorizations necessary for the lawful
conduct of their
respective businesses under and pursuant to all, and are in
compliance with and
are not, to its knowledge, in default in any respect under such
licenses,
franchises, permits and authorizations under any applicable law,
statute, order,
rule, regulation, policy and/or guideline of any Governmental
Entity relating to
OC Financial or any of its Subsidiaries, except where the failure
to hold such
license, franchise, permit or authorization or such noncompliance
or default
would not, individually or in the aggregate, have or be reasonably
likely to
have a Material Adverse Effect on OC Financial; and (iii) neither
OC Financial
nor any of its Subsidiaries knows of, or has received notice of,
any material
violations of any of the above or threats to resolve, suspect or
otherwise
restrict any of the above since April 1, 2005.
3.16
CERTAIN CONTRACTS.
(a) Except as
set forth in SCHEDULE 3.16(A) of the OC Financial
Disclosure Schedules, neither OC Financial nor any of its
Subsidiaries is a
party to or bound by any contract, arrangement, commitment or
understanding
(whether written or oral) (i) with respect to the employment of any
directors,
officers, employees or consultants; (ii) which would entitle any
present or
former director, officer, employee or agent of OC Financial or any
of its
Subsidiaries to indemnification from OC Financial or any of its
Subsidiaries,
(iii) which, upon the consummation of the transactions contemplated
by this
Agreement or the Bank Merger Agreement will (either alone or upon
the occurrence
of any additional acts or events) result in any payment (whether of
severance
pay or otherwise) becoming due from First Place, OC Financial, OC
Bank, the Bank
or any of their respective Subsidiaries or successors to any
officer or employee
thereof, (iv) that OC Financial or any Subsidiary is a party which
involves the
annual payment of more than $10,000 or more; (v) which is a
consulting agreement
(including data processing, software programming and licensing
contracts) not
terminable on 60 days or less notice involving the payment of more
than $10,000
per annum, in the case of any such agreement with an individual, or
$25,000 per
18
<PAGE>
annum, in the case of any other such agreement; (vi) which
materially restricts
the conduct of any line of business by OC Financial or any of its
Subsidiaries;
(vi) with or to a labor union or guild (including any collective
bargaining
agreement); (vii) relating to the acquisition or disposition of any
business
(whether by merger, sale of stock, sale of assets or otherwise) or
material
assets; (viii) that grants any right of first refusal or right of
first offer or
similar right or that limits or purports to limit the ability of OC
Financial or
any of its Subsidiaries to own, operate, sell, transfer, pledge or
otherwise
dispose of any material amount of assets or business; (ix) with
respect to any
material joint venture, partnership agreement or similar agreement;
(x) with
respect to any agreement relating to any intellectual property;
(xi) relating to
the indebtedness by OC Financial or its Subsidiaries for borrowed
money or any
guaranty of indebtedness for borrowed money in excess of $10,000;
or (xii) where
any employee benefits (including any stock option plan, stock
appreciation
rights plan, restricted stock plan or stock purchase plan) will be
increased, or
the vesting of the benefits of which will be accelerated, by the
occurrence of
any of the transactions contemplated by this Agreement or the Bank
Merger
Agreement, or the value of any of the benefits of which will be
calculated on
the basis of any of the transactions contemplated by this Agreement
or the Bank
Merger Agreement. Each contract, arrangement, commitment or
understanding of the
type described in this Sections 3.16(a) and 3.16(c) hereof, whether
or not set
forth in SCHEDULE 3.16(A) or SCHEDULE 3.16(C) of the OC Financial
Disclosure
Schedules, is referred to herein as a "OC Financial Contract." OC
Financial has
previously delivered to First Place true and correct copies of each
OC Financial
Contract.
(b) Except as
set forth in SCHEDULE 3.16(B) of the OC Financial
Disclosure Schedules, (i) each OC Financial Contract is valid and
binding and in
full force and effect, except as enforcement may be limited by
general
principles of equity whether applied in a court of law or a court
of equity and
by bankruptcy, insolvency, receivership, conservatorship
reorganization,
moratorium, fraudulent transfer and similar laws affecting
creditors' rights and
remedies generally, (ii) OC Financial and each of its Subsidiaries
has in all
material respects performed all obligations required to be
performed by it to
date under each OC Financial Contract, except where such
noncompliance,
individually or in the aggregate, would not have or be reasonably
likely to have
a Material Adverse Effect on OC Financial, (iii) no event or
condition exists
which constitutes or, after notice or lapse of time or both, would
constitute, a
material default on the part of OC Financial or any of its
Subsidiaries under
any such OC Financial Contract, except where such default,
individually or in
the aggregate, would not have or be reasonably likely to have a
Material Adverse
Effect on OC Financial and (iv) no other party to such OC Financial
Contract is,
to OC Financial's knowledge, in default in any respect
thereunder.
(c) SCHEDULE
3.16(C) of the OC Financial Disclosure Schedules sets
forth all agreements of OC Financial providing for the lease of
real property,
including term of the lease, any option to extend such lease and
any consent or
notice required in connection with the Merger and the transactions
contemplated
hereby.
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3.17
AGREEMENTS WITH
REGULATORY AGENCIES. Except as set forth in SCHEDULE
3.17 of the OC Financial Disclosure Schedules, neither OC Financial
nor any of
its Subsidiaries is subject to any cease-and-desist or other order
issued by, or
is a party to any written agreement, consent agreement or
memorandum of
understanding with, or is a party to any commitment letter or
similar
undertaking to, or is subject to any order or directive by, or is a
recipient of
any supervisory letter from, or has adopted any board resolutions
at the request
of (each, whether or not set forth on SCHEDULE 3.17 of the OC
Financial
Disclosure Schedules, a "Regulatory Agreement"), any Regulatory
Agency or other
Governmental Entity that restricts the conduct of its business or
that in any
manner relates to its capital adequacy, its credit policies, its
management or
its business, nor has OC Financial or any of its Subsidiaries been
advised by
any Regulatory Agency or other Governmental Entity that it is
considering
issuing or requesting any Regulatory Agreement.
3.18
INVESTMENT SECURITIES.
SCHEDULE 3.18 of the OC Financial Disclosure
Schedules sets forth the book and market value as of February 29,
2008 of the
investment securities, mortgage-backed securities and securities
held for
investment, sale or trading of OC Financial and its Subsidiaries.
SCHEDULE 3.18
of the OC Financial Disclosure Schedules sets forth an investment
securities
report that includes, security descriptions, CUSIP numbers, pool
face values,
book values, coupon rates and current market values. The totals
presented in the
securities report agree to the amounts carried in OC Financial's
and its
Subsidiaries' general ledgers in accordance with GAAP. Except as
disclosed in
SCHEDULE 3.18 of the OC Financial Disclosure Schedules, since April
1, 2005 to
the date hereof, neither OC Financial nor its Subsidiaries has
incurred any
unusual or extraordinary losses in its investment portfolio, and,
except for
matters of general application to the banking industry (including,
but not
limited to, changes in laws or regulations or generally accepted
accounting
principles) or for events relating to the business environment in
general,
including market fluctuations and changes in interest rates, OC
Financial is not
aware of any events which may be expected to result in any material
adverse
change in the quality or performance of the investment portfolio of
OC Financial
or its Subsidiaries.
3.19
INTELLECTUAL PROPERTY.
OC Financial and each of its Subsidiaries
owns (without lien or encumbrance of any kind) or possesses valid
and binding
licenses and other rights to use without payment all material
patents,
copyrights, trade secrets, trade names, servicemarks, trademarks
and computer
software used in its businesses; and neither OC Financial nor any
of its
Subsidiaries has received any notice of conflict with respect
thereto that
asserts the right of others. OC Financial and each of its
Subsidiaries have in
all material respects performed all the obligations required to be
performed by
them and are not in default in any material respect under any
contract,
agreement, arrangement or commitment relating to any of the
foregoing, except
where such non-performance or default would not, individually or in
the
aggregate, have or be reasonably likely to have a Material Adverse
Effect on OC
Financial. SCHEDULE 3.19 of the OC Financial Disclosure Schedules
lists (i) all
patents, registered copyrights, trade names, servicemarks,
trademarks of OC
Financial and its Subsidiaries that are owned by OC Financial and
its
Subsidiaries and (ii) all patents, registered copyrights, trade
names,
servicemarks, trademarks of OC Financial and its Subsidiaries that
are licensed
by OC Financial and its Subsidiaries.
20
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3.20
UNDISCLOSED
LIABILITIES. Except (a) as set forth in SCHEDULE 3.20 of
the OC Financial Disclosure Schedules, (b) for those liabilities
that are fully
reflected or reserved against on the consolidated balance sheet of
OC Financial
included in the OC Financial Statements; and (c) for liabilities
incurred in the
ordinary course of business since September 30, 2007 that, either
alone or when
combined with all similar liabilities, have not had, and could not
reasonably be
expected to have, a Material Adverse Effect on OC Financial,
neither OC
Financial nor any of its Subsidiaries has incurred any liability of
any nature
whatsoever (whether absolute, accrued, contingent or otherwise and
whether due
or to become due).
3.21
STATE TAKEOVER LAWS.
OC Financial, OC Bank and each other Subsidiary
has taken all actions required to exempt such company, this
Agreement, the
Merger and the Subsidiary Merger, and the transaction contemplated
hereby and by
the Bank Merger Agreement, from any provisions of an antitakeover
nature
contained in their organizational documents or the provisions of
any federal or
state "antitakeover," "fair price," "moratorium," "affiliate
transaction",
"control share acquisition" or similar laws or regulations
("Takeover Laws"),
including but not limited to Sections 3-601 through 3-604 and
Section 3-701
through 3-709 of the MGCL.
3.22
ADMINISTRATION OF
FIDUCIARY ACCOUNTS. OC Financial and each of its
Subsidiaries has properly administered in all material respects all
accounts for
which it acts as a fiduciary, including but not limited to accounts
for which it
serves as a trustee, agent, custodian, personal representative,
guardian,
conservator or investment advisor, in accordance with the terms of
the governing
documents and applicable state and federal law and regulation and
common law.
Neither OC Financial nor any of its Subsidiaries nor any of their
respective
directors, officers or employees has committed any breach of trust
with respect
to any such fiduciary account which has had or could reasonably be
expected to
have a Material Adverse Effect on OC Financial, and the books and
records for
each such fiduciary account are true and correct in all material
respects and
accurately reflect the assets of such fiduciary account.
3.23
ENVIRONMENTAL MATTERS.
Except as set forth in SCHEDULE 3.23 of the
OC Financial Disclosure Schedules:
(a) Each of OC
Financial, its current or prior Subsidiaries, the
Participation Facilities and the Loan Properties (each as
hereinafter defined)
are, and have been, in material compliance with all applicable
federal, state
and local laws including common law, regulations and ordinances and
with all
applicable permits, decrees, orders and contractual obligations
relating to
pollution, the discharge of, or exposure to materials in the
environment or
workplace ("Environmental Laws");
(b) There is no
suit, claim, action or proceeding, pending or, to
OC Financial's knowledge, threatened, before any court,
Governmental Entity or
other forum (including arbitration) in which OC Financial, any of
its
Subsidiaries, any Participation Facility or any Loan Property, has
been or, with
respect to threatened proceedings, may be, named as a defendant (x)
for alleged
noncompliance (including by any predecessor), with any
Environmental Laws, or
(y) relating to the release, threatened release or exposure to any
material
whether or not occurring at or on a site owned, leased or operated
by OC
Financial or any of its current or prior Subsidiaries, any
Participation
Facility or any Loan Property;
21
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(c) During the
period of (x) OC Financial's or any of its
Subsidiaries' ownership or operation of any of their respective
current
properties, (y) OC Financial's or any of its Subsidiaries'
participation in the
management of any Participation Facility, or (z) OC Financial's or
any of its
Subsidiaries' holding of a security interest in a Loan Property,
there has been
no release of materials in, on, under or affecting any such
property except in
compliance with required governmental permits. Prior to the period
of (x) OC
Financial's or any of its Subsidiaries' ownership or operation of
any of their
respective current properties, (y) OC Financial's or any of its
Subsidiaries'
participation in the management of any Participation Facility, or
(z) OC
Financial's or any of its Subsidiaries' holding of a security
interest in a Loan
Property, there was no release or threatened release of materials
in, on, under
or affecting any such property, Participation Facility or Loan
Property, except
in compliance with required permits;
(d) Except as
set forth in SCHEDULE 3.23(D) of the OC Financial
Disclosure Schedules, all Phase I or Phase II environmental surveys
on any
properties owned or leased by OC Financial or its Subsidiaries,
including but
not limited to other real estate owned ("OREO") properties have
been provided in
full to First Place and its representatives prior to execution of
this
agreement, and those listed in the Schedule will be provided within
ten days of
execution of this agreement; and
(e) The
following definitions apply for purposes of this Section
3.23 hereof: (x) "Loan Property" means any property in which OC
Financial or any
of its current or prior Subsidiaries holds a security interest or
otherwise
owns; (y) "Participation Facility" means any facility in which OC
Financial or
any of its Subsidiaries participates in the management thereof; (z)
"materials"
includes, but is not limited to, hazardous substances and petroleum
as defined
in section 101(14) of the Comprehensive Environmental Response,
Compensation and
Liability Act (CERCLA), 42 U.S.C. ss. 9601(14) and section 311 of
the Clean
Water Act, 33 U.S.C. ss. 1321 and their implementing
regulations.
3.24
DERIVATIVE
TRANSACTIONS. Except as set forth in SCHEDULE 3.24 of the
OC Financial Disclosure Schedules, neither OC Financial nor any of
its
Subsidiaries is a party to or has agreed to enter into an exchange
traded or
over-the-counter equity, interest rate, foreign exchange or other
swap, forward,
future, option, cap, floor or collar or any other contract that is
not included
on its balance sheet and is a derivatives contract (including
various
combinations thereof) (each, a "Derivatives Contract") nor does OC
Financial or
any of its Subsidiaries own securities that (i) are referred to
generically as
"structured notes," "high risk mortgage derivatives," "capped
floating rate
notes" or "capped floating rate mortgage derivatives" or (ii) are
likely to have
changes in value as a result of interest or exchange rate changes
that
significantly exceed normal changes in value attributable to
interest or
exchange rate changes.
3.25
OPINION. OC Financial
has received a written opinion, dated the date
hereof, from KBW to the effect that, subject to the terms,
conditions and
qualifications set forth therein, as of the date thereof the
Aggregate Merger
Consideration is fair to OC Financial's stockholders from a
financial point of
view.
22
<PAGE>
3.26
ASSISTANCE AGREEMENTS.
Neither OC Financial nor any of its
Subsidiaries is a party to any agreement or arrangement entered
into in
connection with the consummation of a federally assisted
acquisition of a
depository institution pursuant to which OC Financial or any of its
Subsidiaries
is entitled to receive financial assistance or indemnification from
any
governmental agency.
3.27
APPROVALS. As of the
date of this Agreement, OC Financial knows of
no reason why all regulatory approvals required for the
consummation of the
transactions contemplated hereby (including, without limitation,
the Merger)
should not be obtained without the imposition of a Burdensome
Condition (as
defined in Section 7.1(g) hereof).
3.28
LOAN PORTFOLIO.
(a) In OC
Financial's reasonable judgment, the allowance for loan
losses reflected in OC Financial's audited statement of financial
condition at
September 30, 2007 was, and the allowance for loan losses shown on
the balance
sheets in OC Financial's Reports for periods ending after September
30, 2007
have been and will be, adequate in all material respects, as of the
dates
thereof, under GAAP, and no Regulatory Agencies have required or
requested OC
Bank to increase the allowance for loan losses for such periods. OC
Bank's
allowance for loan losses is, and shall be as of the Effective Time
(including
any modification as required by Section 6.9 hereof), in compliance
with
standards established by applicable Governmental Entities and the
Financial
Accounting Standards Board and is and shall be adequate under all
such
standards.
(b) As of
September 30, 2007, except as set forth in SCHEDULE 3.28
of the OC Financial Disclosure Schedules, neither OC Financial nor
any of its
Subsidiaries is a party to any written or oral (i) loan agreement,
note or
borrowing arrangement (including, without limitation, leases,
credit
enhancements, commitments, guarantees and interest-bearing assets)
(individually
a "Loan" and collectively, "Loans"), under the terms of which the
obligor is, as
of the date of this Agreement, over 90 days delinquent in payment
of principal
or interest or in default of any other provision, or (ii) Loans
with any
director, executive officer or ten percent stockholder of OC
Financial or any of
its Subsidiaries, or to the knowledge of OC Financial, any person,
corporation
or enterprise controlling, controlled by or under common control
with any of the
foregoing. SCHEDULE 3.28 of the OC Financial Disclosure Schedules
sets forth (i)
all of the Loans of OC Financial or any of its Subsidiaries that as
of the date
of this Agreement are classified as "Other Loans Specially
Mentioned," "Special
Mention," "Substandard," "Doubtful," "Loss," "Classified,"
"Criticized," "Credit
Risk Assets," "Concerned Loans," "Watch List," "OREO" acquired by
foreclosure or
deed in lieu thereof, or words of similar import, together with the
principal
amount of and the accrued and unpaid interest on each such Loan and
the identity
of the Loan by number; and (ii) by category of Loan (i.e.,
commercial, consumer,
etc.), all of the other Loans of OC Financial or any of its
Subsidiaries that as
of the date of this Agreement are classified as such, together with
the
aggregate principal amount of and accrued and unpaid interest on
such Loans by
category. OC Financial shall promptly inform First Place in writing
of any Loan
that becomes classified in the manner described in the previous
sentence, or any
Loan the classification of which is changed, at any time after
September 30,
2007.
23
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(c) Each Loan reflected as an asset in
the OC Financial Reports
(i) is evidenced by notes, agreements or other evidences of
indebtedness which
are true, genuine and correct in all material respects, (ii) to the
extent
secured, has been secured by valid liens and security interests
which have been
perfected, and (iii) is the legal, valid and binding obligation of
the obligor
named therein, enforceable in accordance with its terms, subject to
bankruptcy,
insolvency, fraudulent conveyance and other laws of general
applicability
relating to or affecting creditors' rights and to general equity
principles, in
each case other than loans as to which the failure to satisfy the
foregoing
standards would not have a Material Adverse Effect on OC
Financial.
3.29
MORTGAGE BANKING
BUSINESS.
(a) WAREHOUSE
LINES OF CREDIT. OC Financial and its Subsidiaries
do not maintain any warehouse lines of credit.
(b) COMPLIANCE.
Neither OC Financial nor any of its Subsidiaries
has done or failed to do, or caused to be done or omitted to be
done, any act,
the effect of which would operate to invalidate or materially
impair (i) any
private mortgage insurance or commitment of any private mortgage
insurer to
insure, (ii) any title insurance policy, (iii) any hazard insurance
policy, (iv)
any flood insurance policy, (v) any fidelity bond, direct surety
bond, errors
and omissions or other insurance policy required by any Regulatory
Agency,
investor or insurer, (vi) any surety or guaranty agreement or (ix)
the rights of
OC Financial or any of its Subsidiaries under any Loan servicing
agreement or
loan purchase commitment. No Regulatory Agency or investor in Loans
or insurer
has (i) notified OC Financial or its Subsidiaries, or to OC
Financial's
knowledge, claimed that OC Financial or any of its Subsidiaries has
violated or
has not complied on a recurring basis with the applicable
underwriting standards
with respect to Loans sold by OC Financial or any of its
Subsidiaries to an
investor or (ii) imposed restrictions on the activities (including
commitment
authority) of OC Financial or any of its Subsidiaries. OC Bank has
not and
currently does not originate any FHA or VA Loans.
(c) LOAN FILES.
The loan documents relating to each Loan
maintained in the loan files of OC Bank were in compliance with all
applicable
laws and regulations at the time of the origination, assumption or
modification
of such Loan, as the case may be, except where the failure to so
comply, either
individually or in the aggregate, would not have a Material Adverse
Effect on OC
Financial. The loan files maintained by OC Bank contain originals
(or, where
necessitated by the terms of the applicable
