SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 30, 1998
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First Defiance Financial Corp.
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(Exact name of registrant as specified in its charter)
Ohio 0-26850 34-1803915
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(State of Incorporation) (Commission File No.) (IRS Employer
Identification No.)
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601 Clinton Street, Defiance, Ohio 43512
(Address of principal executive offices)
Registrant's telephone number, including area code: 419-782-5015.
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FORM 8-K
Item 5. Other Events.
On October 30, 1998, First Defiance Financial Corp., an Ohio
corporation ("First Defiance"), Insurance Center of Defiance, Inc., an Ohio
corporation (the "Agency"), and the Agency's shareholders, Steven P.
Grosenbacher, Lawrence H. Woods and Timothy S. Whetstone, entered into an
Agreement of Merger and Plan of Reorganization, a copy of which is attached
hereto as Exhibit 2 (the "Agreement"). The Agreement provides for the formation
by First Defiance of a subsidiary that will be merged into the Agency, resulting
in the acquisition of the Agency by First Defiance (the "Acquisition"). A copy
of the Agreement is attached hereto as Exhibit 2. The consummation of the
Acquisition is subject to a number of conditions. The Agreement may be
terminated by any of the parties if the Acquisition is not consummated on or
before December 31, 1998.
First Defiance also announced on October 30, 1998, its intention to
repurchase up to 15% of its outstanding shares, or 1,226,704 shares, in the open
market commencing no earlier than November 5, 1998. The shares will be purchased
at prevailing market prices from time to time over a twelve-month period,
depending on market conditions. The shares will become treasury shares available
for general corporate purposes, including the issuance of shares in connection
with the exercise of stock options.
Item 7. Financial Statements and Exhibits.
(a) and (b). Not applicable.
(c) Exhibits.
See Index to Exhibits.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
FIRST DEFIANCE FINANCIAL CORP.
By: /s/John C. Wahl
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John C. Wahl
Senior Vice President and
Chief Financial Officer
Date: November 2, 1998
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INDEX TO EXHIBITS
Exhibit Number Description
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2 Agreement of Merger and Plan of Reorganization,
dated October 30, 1998, by and among First Defiance
Financial Corp., Insurance Center of Defiance, Inc.,
Steven P. Grosenbacher, Lawrence H. Woods and
Timothy S. Whetstone
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereto duly authorized.
Date: November 2, 1998 FIRST DEFIANCE FINANCIAL CORP.
By:/s/ John C. Wahl
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John C. Wahl
Senior Vice President,
Chief Financial Officer
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EXHIBITS
Exhibit
Number Description
2 Agreement of Merger and Plan of Reorganization,
dated October 30, 1998, by and among First Defiance
Financial Corp., Insurance Center of Defiance, Inc.,
Steven P. Grosenbacher, Lawrence H. Woods and
Timothy S. Whetstone
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EXHIBIT 2
AGREEMENT OF MERGER AND PLAN OF REORGANIZATION
THIS AGREEMENT OF MERGER AND PLAN OF REORGANIZATION (this "Agreement"),
made and entered into as of this ____ day of _____________, 1998, by and among
First Defiance Financial Corp., an Ohio corporation ("First Defiance");
Insurance Center of Defiance, Inc., an Ohio corporation ("Agency"); Steven P.
Grosenbacher; Lawrence H. Woods; and Timothy S. Whetstone (such natural persons
hereinafter referred to as the "Agency Shareholders") to which First Defiance
Merger Corp., a corporation to be organized under the laws of the State of Ohio
("Merger Corp.") shall become a party;
WITNESSETH:
WHEREAS, the Agency Shareholders are the owners of all of the
outstanding common shares of Agency (the "Agency Shares"); and
WHEREAS, upon the terms and subject to the conditions of this
Agreement, Agency, the Agency Shareholders and First Defiance have agreed to
effectuate a merger pursuant to which (i) Merger Corp., the shares of which will
be wholly owned by First Defiance, will be merged with and into Agency; and (ii)
the Agency Shareholders will receive in exchange for the Agency Shares the
Reorganization Consideration set forth in Section 2 of this Agreement (the
"Reorganization"); and
WHEREAS, the respective Boards of Directors of First Defiance and
Agency have determined that the Reorganization is fair to, and in the best
interests of, their respective companies and shareholders and have approved and
adopted this Agreement and the Reorganization; and
WHEREAS, for federal income tax purposes, it is intended that the
Reorganization qualify as a reorganization under the provisions of Section
368(a) of the Internal Revenue Code of 1986, as amended ("Code");
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, the parties hereto agree as follows:
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I. The Reorganization.
A. Subject to the terms and conditions of this Agreement and pursuant
to applicable laws, Merger Corp. shall merge with and into Agency. Upon the
terms and subject to the conditions set forth in this Agreement, the
transactions contemplated by this Agreement shall be consummated at a closing to
be held as set forth in Section 3 of this Agreement (the "Closing"). In
connection with the Closing, Agency and Merger Corp. shall execute a certificate
of merger and shall cause such certificate to be delivered to the Ohio Secretary
of State in accordance with Section 1701.81 of the Ohio Revised Code. The merger
shall be effective at the time and on the date specified in such certificate of
merger (the "Effective Time").
B. At the Effective Time, the separate existence of Merger Corp. shall
cease and Agency, as the surviving entity, shall continue unaffected and
unimpaired by the merger. At the Effective Time, the registered office of Agency
shall remain unchanged by the merger.
C. The Articles of Incorporation and Code of Regulations of Agency in
effect immediately prior to the Effective Time shall be the Articles of
Incorporation and Code of Regulations of Agency on and after the Effective Time,
in each case until amended in accordance with applicable law. At the Effective
Time, the Board of Directors of Agency shall consist of those persons serving as
directors of Agency immediately prior to the Effective Time.
D. Each common share of Merger Corp. issued and outstanding immediately
prior to the Effective Time shall, at the Effective Time, be changed into one
common share of Agency, no par value.
E. At the Effective Time, each common share of Agency outstanding
immediately prior to the Effective Time shall by virtue of the merger be
converted into the right to receive the consideration set forth in Section 2 of
this Agreement. At the Effective Time, all shares of Agency held in the treasury
of Agency shall be canceled and no cash, stock or other property shall be
delivered in exchange therefor.
Consideration for Agency Shares and Exchange of Shares Pursuant to the
Reorganization.
a. At the Effective Time, each of the Agency Shareholders shall be
entitled to receive in exchange for each of the Agency Shares held by such
Agency Shareholder 2,657.0363 voting common shares of First Defiance, no par
value (the "Reorganization Consideration"); provided, however, that (A) no
fractional shares will be issued, and cash will be paid in lieu of fractional
shares based on the aforementioned exchange rate; and (B) in the event of the
subdivision of the outstanding voting common shares of First Defiance, no par
value ("First Defiance Shares"), the payment of a dividend in First Defiance
Shares or a capital reorganization, reclassification or recapitalization
affecting First Defiance Shares, the Reorganization Consideration shall be
appropriately adjusted. After the Effective Time, the Agency Shareholders shall
cease to have any rights with respect to the Agency Shares, except as otherwise
provided in this Agreement or under applicable law.
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b. In addition to the Reorganization Consideration, each of the Agency
Shareholders shall be entitled, to the extent permitted by law, to receive
payments in cash determined as follows:
(i) At the end of each fiscal year beginning after the
Effective Time, the net income of the Agency shall be
determined in accordance with generally accepted accounting
principles. For each of such fiscal years, the Agency
Shareholders shall be entitled for each Agency Share held at
the Effective Time to an amount determined by the following
formula:
(a) (I) the net income of the Agency in excess of 12% of the
sum of (A) $1.8 million, plus (B) the total amount previously
paid to the Agency Shareholders pursuant to this subsection
2.b., divided by (II) 2; divided by
(b) 55.
(ii) The total amount of the sum determined pursuant to
Section 2.b(i)(a) shall not be more than $400,000.
3. Closing. The Closing shall occur at the offices of First Defiance, 601
Clinton Street, Defiance, Ohio 43512, on a date and at a time designated by
First Defiance as soon as practicable after the satisfaction of all conditions
set forth herein.
4. Tax Consequences of the Reorganization. It is intended that the
Reorganization shall constitute a "reorganization" within the meaning of Code
Section 368(a) and that this Agreement shall constitute a "plan of
reorganization" within the meaning of the Code and applicable law.
5. Obligations of Agency Shareholders at Closing. At the Closing, the Agency
Shareholders shall deliver to First Defiance:
A. Certificates for all of the outstanding Agency Shares, duly endorsed
in blank and in appropriate form for transfer and accompanied by any other
documents necessary for an effective transfer of the Agency Shares; and
B. All of Agency's corporate minute books, share ledgers, share
certificate books and share transfer books, Agency's corporate seal, if any, and
control of the Agency and the Agency's properties.
6. Obligations of First Defiance at Closing. Promptly after the Effective Time,
First Defiance shall deliver to the Agency Shareholders the Reorganization
Consideration, as described in Section 2 of this Agreement.
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7. Representations and Warranties of Agency and the Agency Shareholders. Agency
and the Agency Shareholders, jointly and severally, represent and warrant to
First Defiance that each of the following statements is true and accurate in all
material respects:
a. The Agency Shareholders are the owners of the number of Agency
Shares set forth below. Except as set forth in a Buy-Sell Agreement among the
Agency Shareholders and Agency, a copy of which is included in a Disclosure
Schedule delivered to First Defiance before the execution of this Agreement (the
"Disclosure Schedule"), each of the Agency Shareholders owns the Agency Shares
free and clear of any and all liens, encumbrances, restrictions or conditions,
and none of the Agency Shareholders has granted any options, purchase rights or
other agreements or commitments of any nature whatsoever with respect to the
Agency Shares.
Steven P. Grosenbacher 20 Agency Shares
Lawrence H. Woods 20 Agency Shares
Timothy S. Whetstone 15 Agency Shares
b. Agency is a corporation duly organized, validly existing and in good
standing under the laws of the State of Ohio and possesses all necessary
corporate powers and authority, licenses and franchises to own its property and
assets and to conduct its business as and where it is being conducted. Agency is
in compliance in all material respects with all applicable local, state or
federal laws and regulations. Agency has filed all reports required by the Ohio
Department of Insurance, including Forms CN-65 to report all changes for which
such Forms are required.
C. The authorized capital of Agency consists solely of 250 common
shares, no par value, of which 55 common shares are issued and outstanding and
held solely by the Agency Shareholders, as set forth in Section 7.a. of this
Agreement. The Agency Shares have been duly authorized and validly issued and
are fully paid and non-assessable. The Agency Shares were not issued in
violation of the preemptive right of any shareholder of Agency. Except as set
forth in the Buy-Sell Agreement included in the Disclosure Schedule, there are
no outstanding subscription rights, options, conversion rights, warrants or
other agreements or commitments of any nature whatsoever obligating Agency to
issue, deliver or sell or restricting Agency from issuing, delivering or selling
any additional Agency common shares or obligating Agency to grant, extend or
enter into any such agreement or commitment.
D. This Agreement has been duly executed and delivered by Agency and
each of the Agency Shareholders. Agency has all requisite corporate power and
authority to enter into this Agreement and to perform all of its obligations
hereunder, and the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action by Agency. This Agreement is the valid and binding
agreement of each of the Agency and the Agency Shareholders, enforceable against
each of them in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws of general
applicability affecting the enforcement of creditors'
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rights generally and the effect of rules of law governing specific performance,
injunctive relief and other equitable remedies on the enforceability of such
documents.
E. Agency has made available to First Defiance true and accurate copies
of its Articles of Incorporation and Code of Regulations and has granted First
Defiance access to all records of all meetings and other corporate actions
occurring before the date of this Agreement by the shareholders, Board of
Directors and Committees of the Board of Directors of Agency. The minute books
of Agency contain, in all material respects, complete and accurate records of
all meetings and other corporate actions of its shareholders, Board of Directors
and Committees of the Board of Directors.
F. Except as set forth in the Disclosure Schedule, including the
Buy-Sell Agreement included therein, the execution and delivery of this
Agreement and, subject to the regulatory filings and approvals referenced in
Section 10.a(1) of this Agreement and subject to the receipt of consents from
insurance companies for which Agency has been appointed an agent, the
consummation of the transactions contemplated hereby will not (1) conflict with
or violate any provision of or result in the breach of any provision of the
Articles of Incorporation or Code of Regulations of Agency; (2) conflict with or
violate any provision of or result in the breach or the acceleration of or
entitle any party to accelerate (whether upon or after the giving of notice or
lapse of time or both) any obligation under, or otherwise materially affect the
terms of, any mortgage, lien, lease, agreement, license, instrument, order,
arbitration award, judgment or decree to which Agency is a party or by which
Agency or its property or assets is bound; (3) require the consent of any party
to any agreement or commitment to which Agency is a party or by which Agency or
its property or assets is bound, the failure to obtain which could, individually
or in the aggregate with all the other failures to obtain required consents,
have a material adverse effect on the business, operations, condition (financial
or otherwise) or prospects of Agency; (4) result in the creation or imposition
of any lien, charge, pledge, security interest or other encumbrance upon any
property or assets of Agency; or (5) violate or conflict with any applicable
law, ordinance, rule or regulation.
G. The financial statements of Agency as of and for the three years
ended December 31, 1997, as contained in the Disclosure Schedule (the "Agency
Financial Statements"), fairly present the financial position of Agency at such
dates and the results of its operations for such periods. Since December 31,
1997, there have been no material adverse changes in the financial condition,
assets, liabilities, obligations, properties, business or prospects of Agency,
and no distributions from Agency's accumulated adjustments account have been
made, except as set forth in the Disclosure Schedule.
H. Except as disclosed in the Agency Financial Statements, Agency has
no liabilities or obligations material to the business condition (financial or
otherwise) of Agency, whether accrued, absolute, contingent or otherwise, and
whether due or to become due.
I. Neither the Agency Financial Statements nor any certificates,
statements or other information furnished to First Defiance in writing by Agency
contains any untrue
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statement of a material fact or omits to state any material fact necessary to
make the information contained therein, in light of the circumstances under
which they were made, not misleading.
J. A list of all material fixed assets owned by Agency carried on the
books of Agency as of the date hereof (the "Personal Property") is set forth in
the Disclosure Schedule. All Personal Property has been maintained in good
working order, ordinary wear and tear excepted. Agency owns and has good title
to all of the Personal Property, free and clear of any mortgage, lien, pledge,
charge, claim, conditional sales or other agreement, lease, right or
encumbrance. A copy of each personal property lease to which the Agency is a
party is included in the Disclosure Schedule.
K. The Agency owns no real property and is not a party to any written
lease of real property.
L. The Disclosure Schedule contains a true, accurate and complete list
of all investments, other than investments in the Personal Property, owned by
Agency as of the date hereof (the "Investments"), the name of the registered
holder thereof, the location of the certificates therefor or other evidence
thereof and any stock powers or other authority for transfer granted with
respect thereto and a true, accurate and complete list of the name of each bank
or other depository in which Agency has an account or safe deposit box. The
Investments are owned by Agency free and clear of all liens, pledges, claims,
security interests, encumbrances, charges or restrictions of any kind and may be
freely disposed of by Agency at any time.
M. Agency has duly and timely filed all federal, state, county and
local income, profits, franchise, excise, sales, customs, property, use,
occupation, withholding, social security and other tax and information returns
and reports required to have been filed by them through the date hereof, and
have paid or accrued all taxes and duties (and all interest and penalties with
respect thereto) due or claimed to be due by Agency. Agency has, to the
knowledge of Agency and the Agency Shareholders, no liability for any taxes or
duties (or interest or penalties with respect thereto) of any nature whatsoever,
and there is no basis for any additional material claims or assessments. True
copies of the federal, state and local income tax returns of Agency for each of
the three tax years ended December 31, 1997, 1996 and 1995, have been delivered
to First Defiance.
There are no federal, state or local tax returns or reports not filed
with respect to all income, profits, franchise, excise, sales, customs,
property, use, occupation, withholding, social security and other taxes which
would be due but for an extension of time for filing having been granted. Agency
has neither executed nor filed with the Internal Revenue Service (the "IRS") or
any state or local tax authority any agreement extending the period for
assessment and collection of any income, profits, franchise, excise, sales,
customs, property, use, occupation, withholding, social security or other taxes,
nor is Agency a party to any action or proceeding of any governmental authority
for assessment or collection of such taxes, except tax liens or levies against
customers of Agency. There is no outstanding assessment or claim of collection
of any of such taxes against Agency. Agency has not received any notice of
deficiency, proposed
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deficiency or assessment from the IRS or any other governmental agency with
respect to any federal, state or local taxes. No tax return of Agency is
currently the subject of any audit by the IRS or any other governmental agency.
No material deficiencies have been asserted in connection with the tax returns
of Agency, and Agency has no reason to believe that any deficiency would be
asserted relating thereto. Agency has never been a member of an "affiliated
group of corporations" (within the meaning of Section 1504(a) of the Code)
filing consolidated returns, and Agency is not a party to any tax sharing
agreement.
N. The Disclosure Schedule contains a copy of each contract or
commitment of Agency involving more than $5,000.
O. Agency is not in default under any contract or agreement of any
kind, and no claim of such default by any party has been made or is now, to the
knowledge of Agency or any of the Agency Shareholders, threatened, except to the
extent such a default would not have a material adverse effect on Agency.
P. The Disclosure Schedule contains copies of all policies of insurance
and bonds on the assets, operations, directors, officers and employees of
Agency. Such policies and bonds are valid and enforceable.
Q. There are no material actions, suits, proceedings or investigations
pending or threatened against or affecting the business, operations or financial
condition of Agency in any court or before any federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality; neither the management of Agency nor any of the Agency
Shareholders has any knowledge of any basis for any such action, suit,
proceeding or investigation; and Agency is not in default in respect of any
judgment, order, writ, injunction or decree of any court or any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality.
R. Agency has all material permits, licenses, orders and approvals of
all federal, state or local governmental or regulatory bodies required for it to
conduct its business as presently conducted, and all of such material permits,
licenses, orders and approvals are in full force and effect, without the threat
of suspension or cancellation. Agency and all of its agents have all licenses
required to sell the types of insurance they are selling. Agency has received no
notice that it is or may become subject to any order or agreement with any
federal or state agency charged with the supervision or regulation of insurance
agencies, nor any notice that it is not in compliance with any statute or
regulation.
S. (1) The Disclosure Schedule sets forth a true and complete list of
all qualified pension or profit-sharing plans, deferred compensation,
consulting, bonus, group insurance plans or agreements and all other incentive,
welfare or employee benefit plans or agreements maintained for the benefit of
employees or former employees of Agency. Copies of such plans and agreements,
together with (a) when applicable, the most recent actuarial and financial
reports prepared with respect to any such plan, (b) the most recent annual
reports filed
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with any government agency and (c) all rulings and determination letters
received from governmental agencies and any open requests for rulings or letters
that pertain to any such plan, have been delivered to First Defiance.
(2) Except as set forth in the Disclosure Schedule, Agency does not
currently maintain, nor has it ever maintained, any "employee pension benefit
plan," as defined in Section 3(2) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA") (each such plan, together with any related trust
or other funding mechanism, as maintained by Agency, hereinafter referred to as
a "Pension Benefit Plan"), which is intended to be qualified under Section
401(a) of the Code.
(3) Agency does not currently maintain, nor has it ever maintained,
any Pension Benefit Plan subject to the provisions of Title IV of ERISA.
(4) Agency does not currently participate in, nor has it ever
participated in, any multiemployer plan, as such term is defined in Sections
3(37) and 4001 of ERISA.
(5) All of the Pension Benefit Plans have complied and comply
currently in all material respects, both as to form and operation, with the
provisions of ERISA and the Code, where required in order to be tax-qualified
under Section 401(a) of the Code, and all other applicable laws, rules and
regulations. Agency is not aware of any event which might jeopardize the tax
qualified status of any Pension Benefit Plan. Each Pension Benefit Plan which is
intended to be qualified under Section 401(a) of the Code has received a
determination letter from the IRS which considers amendments made to the Code by
the Tax Reform Act of 1986. All reports required by any governmental agency with
respect to each Pension Benefit Plan have been timely filed with such agency
and, where required, distributed to participants and beneficiaries of such
Pension Benefit Plan within the time required by law.
(6) Each "employee welfare benefit plan," as defined in Section 3(1)
of ERISA (each such plan together with any related trust or other funding
mechanism, as maintained by Agency, hereinafter referred to as a "Welfare
Benefit Plan") has been administered to date in all material respects in
compliance with the requirements of the Code and ERISA, and all reports required
by any governmental agency with respect to each Welfare Benefit Plan has been
timely filed with such agency and, where required, distributed to participants
and beneficiaries of such Welfare Benefit Plan within the time required by law.
(7) Neither Agency nor any plan fiduciary of any Welfare Benefit
Plan or Pension Benefit Plan has engaged in any transaction in violation of
Section 406(a) or (b) of ERISA (for which no exemption exists under Section 408
of ERISA) or any "prohibited transaction" (as defined in Section 4975(c)(1) of
the Code) for which no exemption exists under Section 4975(c)(1) of the Code.
T. (1) Agency, to its knowledge, is in material compliance with all
applicable Environmental Laws (hereinafter defined). Agency has not received any
written or
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oral communications from any organization, person or otherwise, which alleges
that either (a) Agency is not in compliance with all applicable Environmental
Laws or (b) any properties or assets of Agency may have been affected by any
Materials of Environmental Concern (hereinafter defined).
(2) There is no Environmental Claim (hereinafter defined) pending
or, to the knowledge of Agency, threatened (a) against Agency, (b) against any
person or entity whose liability for any Environmental Claim has or may have
been retained or assumed by Agency either contractually or by operation of law,
or (c) against any real or personal property which Agency owns, leases, manages,
supervises or participates in the management of, other than such as would not,
either individually or in the aggregate, have a material adverse effect on
Agency.
(3) There are no present or, to the knowledge of Agency, past
activities, conditions or incidents, including, without limitation, the release
or disposal of any Material of Environmental Concern, that could reasonably form
the basis of any Environmental Claim against Agency or against any person or
entity whose liability for any Environmental Claim has or may have been retained
or assumed by Agency, either contractually or by operation of law, other than
such as would not, either individually or in the aggregate, have a material
adverse effect on Agency.
(4) As used in this Agreement:
(a) "Environmental Claim" means any claim, cause of action
or notice (written or oral) by any person or entity alleging potential liability
(including, without limitation, potential liability for investigatory costs,
cleanup costs, governmental response costs, natural resources damages, property
damages, personal injuries or penalties) arising out of, based on or resulting
from (I) the presence, or release into the environment, of any Material of
Environmental Concern at any location, whether or not owned by Agency or (II)
circumstances forming the basis of any violation, or alleged violation, of any
Environmental Law;
(b) "Environmental Laws" means all laws and regulations
relating to pollution or protection of human health or the environment
including, without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of Materials of Environmental
Concern, or otherwise relating to the use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern; and
(c) "Materials of Environmental Concern" shall mean (I) any
"hazardous waste" as defined in 42 U.S.C. Section 6903, as amended from time to
time, and regulations promulgated thereunder from time to time; (II) any
"hazardous substance" as defined in 42 U.S.C. Section 9601, as amended from time
to time, and regulations promulgated thereunder from time to time; (III)
asbestos; (IV) PCB's; (V) any substance the presence of which on First
Defiance's or Agency's property is prohibited by any applicable law, ordinance,
or regulation; (VI) petroleum products; and (VII) underground storage tanks and
above ground storage tanks.
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U. Agency is in compliance with all federal, state or other applicable
laws respecting employment and employment practices, terms and conditions of
employment and wages and hours and has not and is not engaged in any unfair
labor practice, except where such failure to comply or such practice would not
have a material adverse effect on the financial condition, results of
operations, business or prospects of Agency. No unfair labor practice complaint
against Agency is pending before any governmental agency or court and there is
no labor strike, dispute, slowdown or stoppage actually pending or threatened
against or involving Agency. No representation question exists in respect of the
employees of Agency and no labor grievance which might have a material adverse
effect upon Agency or the conduct of its business is pending or, to the
knowledge of Agency, threatened. Agency has not entered into any collective
bargaining agreement with any labor organization with respect to any group of
employees of Agency, and, to the knowledge of Agency, there is no present effort
nor existing proposal to attempt to unionize any group of employees of Agency.
V. Agency does not have, and has never had, any subsidiary.
W. Neither Agency nor any of the Agency Shareholders has received (1)
any notice or advice that Agency is or may become subject to any order or
agreement of any federal or state agency charged with the supervision or
regulation of insurance agencies or any other governmental agency having
supervisory or regulatory authority with respect to Agency; (2) any notice or
advice that it is not in substantial compliance with any statute or regulation;
or (3) any notice from any governmental authority threatening to revoke any
license, franchise, permit or governmental authorization.
X. Except as disclosed in the Disclosure Schedule, Agency is not a
party to any oral or written employment agreement, severance agreement or
consulting agreement.
8. Representations and Warranties of First Defiance.
a. First Defiance is a corporation duly organized, validly existing and
in good standing under the laws of the State of Ohio and has the corporate power
and authority to own or hold under lease all of its properties and assets and to
conduct its business and operations as presently conducted.
b. This Agreement has been duly executed and delivered by First
Defiance. Subject to the filing and approval of all requisite regulatory notices
and applications, First Defiance has all requisite corporate power and authority
to enter into this Agreement and to perform its obligations hereunder, and the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action by First Defiance.
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c. First Defiance has made available, or will promptly make available,
to Agency and each of the Agency Shareholders true and accurate copies of First
Defiance's Articles of Incorporation and Code of Regulations.
d. The execution and delivery of this Agreement and, subject to the
regulatory filing and approvals referenced in Section 10.a(1) of this Agreement,
the consummation of the transactions contemplated hereby will not (1) conflict
with or violate any provision of or result in the breach of any provision of the
Articles of Incorporation or Code of Regulations of First Defiance; (2) conflict
with or violate any provision of or result in the breach or the acceleration of
or entitle any party to accelerate (whether upon or after the giving of notice
or lapse of time or both) any obligation under, or otherwise materially affect
the terms of, any mortgage, lien, lease, agreement, license, instrument, order,
arbitration award, judgment or decree to which First Defiance is a party or by
which First Defiance or its property or assets is bound; (3) require the consent
of any party to any agreement or commitment to which First Defiance is a party
or by which First Defiance or its property or assets is bound, the failure to
obtain which could, individually or in the aggregate with all of the other
failures to obtain written consents, have a material adverse effect on the
business, operations, condition (financial or otherwise) or prospects of First
Defiance; (4) result in the creation or imposition of any lien, charge, pledge,
security interest or other encumbrance upon any property or assets of First
Defiance or give rise to any meritorious cause of action against First Defiance;
or (5) violate or conflict with any applicable law, ordinance, rule or
regulation.
e. The authorized capital of First Defiance consists solely of 20
million common shares, $.01 par value per share, of which 8,178,029 shares are
outstanding, and 5 million preferred shares, no par value, none of which is
outstanding. In addition, there are outstanding options to purchase 905,453
common shares of First Defiance granted with various prices and terms pursuant
to plans for the directors, officers and employees of First Defiance. All of the
outstanding common shares of First Defiance have been duly authorized and
validly issued and are fully paid and non-assessable.
f. First Defiance has delivered to each of the Agency Shareholders
copies of the following documents, each of which has been filed with the
Securities and Exchange Commission (the "SEC"):
(1) The Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(2) The Annual Report to Shareholders for the fiscal year
ended December 31, 1997;
(3) The Proxy Statement for use in connection with the 1998
Annual Meeting of Shareholders of First Defiance; and
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(4) The Quarterly Reports on Form 10-Q for the quarters
ended March 31 and June 30, 1998.
Such filings did not, as of the dates on which such reports were filed
with the SEC, contain any untrue statement of a material fact or omit any
material fact necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading.
g. Since June 30, 1998, there have been no material adverse changes in
the financial condition, assets, liabilities, obligations, properties, business
or prospects of First Defiance and its subsidiaries, taken as a whole.
h. First Defiance has all material permits, licenses, orders and
approvals of all federal, state or local governmental or regulatory bodies
required for it to conduct its businesses as presently conducted, and all such
material permits, licenses, orders and approvals are in full force and effect,
without the threat of suspension or cancellation.
9. Covenants.
a. Conduct of Agency's Business. From the date of this Agreement until
the Effective Time, Agency and the Agency Shareholders shall use all reasonable
efforts to preserve intact Agency's business organization and assets and
maintain its rights, franchises and existing relationships with customers,
suppliers and business associates. Except as set forth in Section 9.b. of this
Agreement or with the prior written consent of First Defiance, from the date of
this Agreement until the Closing, Agency will conduct its business only in the
ordinary course, in accordance with past practices and policies and in
compliance with all applicable statutes, rules and regulations. Notwithstanding
the foregoing, without the prior written consent of First Defiance, Agency will
not:
(1) Authorize or agree to authorize the creation or issuance
of, or issue, sell or dispose of, or create any obligation to issue, sell or
dispose of, any stock, notes, bonds or other securities of which Agency is the
issuer, or any obligations convertible into or exchangeable for any shares of
its capital stock;
(2) Declare, set aside, pay or make any divided or other
distribution on its capital stock, or directly or indirectly redeem, purchase or
otherwise acquire any share thereof or enter into any agreement with respect to
the foregoing; provided, however, that Agency may distribute up to $54,711 from
its accumulated adjustments account to the Agency Shareholders prior to the
Effective Time;
(3) Effect any stock split, recapitalization, combination,
exchange of shares, readjustment or other reclassification;
(4) Amend its Articles of Incorporation or Code of
Regulations;
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(5) Purchase, sell, assign or transfer any material tangible
asset or any material patent, trademark, trade name, copyright, license,
franchise, design or other intangible assets or property, or purchase any real
property;
(6) Mortgage, pledge, grant or suffer to exist any lien or
other encumbrance or charge on any assets or properties, tangible or intangible,
except for liens for taxes not yet delinquent;
(7) Waive any rights of material value or cancel any material
debts or claims;
(8) Incur any material obligation or liability (absolute or
contingent), including, without limitation, any tax liability, or pay any
material liability or obligation (absolute or contingent), other than
liabilities and obligations incurred in the ordinary course of business;
(9) Cause any material adverse change in the amount or general
composition of liabilities;
(10) Enter into or amend any employment or severance contract
with any of its employees, enter into any consulting agreement, increase the
compensation payable to any employee or director or any relative of any such
employee or director or become obligated to increase any such compensation;
(11) Adopt or amend in any material respect any employee
benefit plan, severance plan or collective bargaining agreement or make awards
or distributions under any employee benefit plan not consistent with past
practice or custom;
(12) Acquire any stock or other equity interest in any
corporation, partnership, trust, joint venture or other entity;
(13) Make any material capital expenditure or commitment for
any material addition to property, plant, or equipment;
(14) Borrow or agree to borrow any funds, including but not
limited to repurchase transactions, or indirectly guarantee or agree to
guarantee any obligations of others;
(15) Enter into any securities transactions for its own
account or purchase or otherwise acquire any investment security for its own
account; or
(16) Agree, whether in writing or otherwise, to take any
action described in this Section 9.a.
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b. Agency Reorganization. Before the Closing, Agency may be required,
in the discretion of First Defiance, to form two subsidiaries to which Agency
will contribute its assets, liabilities and capital. One of such subsidiaries
shall be licensed under the laws of the State of Ohio to conduct the business of
a life insurance agency and possess all assets and liabilities attendant
thereto. Such new life insurance agency shall maintain all of the life insurance
company appointments that were held by Agency before the formation of the two
subsidiaries. The other of such subsidiaries shall be licensed under the laws of
the State of Ohio to conduct all other business currently conducted by Agency
and possess all assets and liabilities attendant thereto. Such new non-life
insurance agency shall maintain all non-life insurance agency company
appointments that were held by Agency before the formation of the two
subsidiaries. Such reorganization of Agency (the "Agency Reorganization") shall
be effected in accordance with all applicable statutes and regulations and in a
manner and at a time determined by First Defiance.
c. Acquisition Transactions. Agency shall (1) not, directly or
indirectly, solicit or initiate any proposals or offers from any person or
entity, or discuss or negotiate with any such person or entity, regarding any
acquisition or purchase of all or a material amount of the assets of, any equity
securities of, or any merger, consolidation or business combination with, Agency
(hereinafter collectively referred to as "Acquisition Transactions"), (2) not
disclose to any person any information not customarily disclosed publicly or
provide access to its properties, books or records or otherwise assist or
encourage any person in connection with any of the foregoing, and (3) give First
Defiance prompt notice of any such inquiries, offers or proposals. If Agency
fails to act in accordance with this subsection and within one year after the
date of this Agreement executes a letter of intent or a definitive agreement in
respect of an Acquisition Transaction with another party, Agency shall pay to
First Defiance $20,000 in immediately available federal funds within two days
after the execution of such letter of intent or definitive agreement.
d. Best Efforts for Qualification as Section 368(a) Reorganization.
Agency and Agency Shareholders shall use their best efforts to cause the
Reorganization to qualify for treatment as a "reorganization" within the meaning
of Code Section 368(a) and will take no action which would cause the
Reorganization not to qualify as a "reorganization" within the meaning of Code
Section 368(a). To that end, Agency Shareholders covenant that they have no
agreement, plan or intention to dispose of a sufficient number of the First
Defiance Shares after the merger, in the aggregate, to cause the merger to fail
to meet the continuity of proprietary interest test for qualification as a
"reorganization" within the meaning of Code Section 368(a).
e. Regulatory Approvals. All parties shall use their reasonable efforts
to file and obtain approval of all regulatory applications necessary to
consummate the transactions contemplated by this Agreement. First Defiance and
Agency shall cooperate and shall cause their respective directors, officers,
employees, agents and advisors to cooperate, to the extent reasonable or
necessary, in connection with the preparation of the regulatory applications and
all other actions necessary to consummate the transactions contemplated by this
Agreement.
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f. Employees. Upon satisfactory review of employment files, all
employees of Agency immediately prior to the Closing, except those employees
covered by a written employment agreement, shall remain at will employees of
Agency. The Agency Shareholders shall each execute employment agreements with
Agency effective upon Closing. Such agreements shall be in a form to be agreed
upon by First Defiance, Agency and each of such persons.
Upon the request of First Defiance, Agency shall take all
steps necessary to commence the termination of Agency's 401(k) plan prior to the
Closing; provided, however, that First Defiance may, at the discretion of First
Defiance, determine not to request such termination and instead merge Agency's
401(k) plan into the 401(k) plan of First Federal Savings and Loan ("First
Federal") following the closing. At the effective time of the Closing, if
Agency's 401(k) plan is terminated, or upon the merger of Agency's 401(k) plan
into First Federal's 401(k) plan, if Agency's 401(k) plan is merged into First
Federal's 401(k) plan, all employees of Agency shall be eligible to participate
in First Federal's 401(k) plan, effective immediately, subject to the terms of
First Federal's 401(k) plan, and shall receive prior service credit for
eligibility and vesting purposes under First Federal's 401(k) plan.
First Defiance shall, in its discretion, (1) provide coverage
for Agency's employees effective upon Closing under the health insurance plan
maintained by First Defiance for the benefit of the employees of First Defiance
and its subsidiaries; provided, however, that any employee of Agency who has
been insured under the health insurance plan maintained by Agency for at least
12 months prior to the Closing shall be covered by First Defiance's health
insurance plan without regard to any waiting periods and limitations on
pre-existing conditions, and any employee of Agency who has not been insured
under the health insurance plan maintained by Agency for at least 12 months
prior to the Closing shall be subject to any waiting periods and limitations on
pre-existing conditions as may be required by First Defiance's health insurance
plan; or (2) maintain in place the health insurance plan currently maintained by
Agency for the benefit of its employees.
g. Affiliates Compliance with 1933 Act. (1) The Disclosure Schedule
sets forth all persons whom Agency and the Agency Shareholders reasonably
believe to be "affiliates" of Agency, as defined in Rule 145 under the
Securities Act of 1933 (the "Affiliates"). After the date of this Agreement and
until the Effective Time, Agency and each of the Agency Shareholders shall
identify to First Defiance each additional person whom they reasonably believe
to have thereafter become an Affiliate.
(2) Concurrently with the execution of this Agreement, each of Agency
and the Agency Shareholders shall deliver to First Defiance a written agreement
in which such Affiliate confirms that the First Defiance Shares received by such
Affiliate pursuant to this Agreement shall be transferable only in accordance
with Rule 145 of the Securities Act of 1933 and other restrictions set forth in
such agreement. After the date of this Agreement, Agency and each of the Agency
Shareholders shall use their best efforts to obtain from each person who is
later
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identified as an Affiliate for delivery to First Defiance before the Effective
Time a similar agreement.
h. Access. Until the Effective Time, Agency shall afford to First
Defiance and to its officers and representatives reasonable access to Agency's
properties, personnel, books, records and affairs.
i. Confidentiality. The parties acknowledge the confidential and
proprietary nature of the information as hereinafter described which has
heretofore been exchanged and which will be received from each other hereunder
(the "Information") and agree to hold and keep the same confidential. The
Information will include any and all financial, technical, commercial,
marketing, customer or other information concerning the business, operations and
affairs of a party that may be provided to the other, irrespective of the form
of the communications, by such party's employees or agents. The Information
shall not include information that is or becomes generally available to the
public other than as a result of a disclosure by a party or its representatives
in violation of this Agreement, or information that is required to be furnished
or used in connection with legal proceedings. The parties agree that the
Information will be used solely for the purposes contemplated by this Agreement
and that the Information will not be disclosed to any person other than
employees and agents of a party who are directly involved in evaluating the
transaction. The Information shall not be used in any way detrimental to a
party, including use directly or indirectly in the conduct of the other party's
business or enterprise in which such party may have an interest, now or in the
future, and whether or not now in competition with such other party. Upon the
written request of the disclosing party, upon termination of this Agreement, the
other parties will promptly return or destroy Information in their possession
and certify to the disclosing party that the party has done so.
j. Press Releases. First Defiance and Agency shall consult with each
other before issuing any press release or otherwise making any public statements
with respect to the transactions contemplated by this Agreement, and no party to
this Agreement shall issue any such press release or make any such public
statement without obtaining the prior consent of First Defiance and Agency,
except as may be required by law or by obligations pursuant to any listing
agreement with any national securities association.
k. Costs and Expenses. Whether or not the transactions contemplated by
this Agreement are consummated, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such costs and expenses.
l. Reasonable Efforts. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all action, and to do or cause to be done all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
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m. Notification of Events. At all times from the date of this Agreement
until the Closing, each party shall promptly notify the other in writing of any
materially adverse business conditions threatening its normal business
operations or of the occurrence of any event or the failure of any event to
occur which might reasonably be expected to result in a breach of or a failure
to comply with any representation, warranty, covenant, condition or agreement
contained in this Agreement or of the commencement of any action, suit,
proceeding or investigation against it.
n. Action by Agency Shareholders. Concurrently with the execution and
delivery of this Agreement, and as a condition and material inducement to First
Defiance's willingness to enter into this Agreement, each of the Agency
Shareholders shall (1) sign and deliver an action in writing approving this
Agreement and the transactions contemplated hereby, and (2) sign and deliver a
representation and acknowledgment in the form attached hereto as Exhibit A.
o. Transfer of Agency Shares. No Agency Shareholder shall transfer any
of the Agency Shares prior to the Effective Time.
10. Closing Matters.
a. Conditions to Obligations of First Defiance. Notwithstanding any
other provision of this Agreement, the obligations of First Defiance to close
the transactions contemplated by this Agreement shall be subject to the
fulfillment of each of the following conditions:
(1) All permits, approvals, consents, authorizations,
exemptions or waivers of any federal or state governmental body or agency
necessary or appropriate for consummation of the transactions contemplated by
this Agreement shall have been obtained and all notices required to be filed
shall have been filed and any objection or waiting period with respect to such
notice shall have expired;
(2) All waivers, consents and approvals of every person
necessary or appropriate for the consummation of the transactions contemplated
by this Agreement shall have been obtained, and none of such waivers, consents
and approvals shall contain any term or condition which, in the judgment of
First Defiance, individually or in the aggregate, would materially reduce the
value of Agency and its subsidiaries, taken as a whole, to First Defiance;
(3) There shall not be in effect any federal or state law,
rule or regulation or any order or decision of a court of competent jurisdiction
which prevents or materially delays the consummation of the transactions
contemplated by this Agreement;
(4) First Defiance shall have (a) received an opinion from its
legal counsel, satisfactory to First Defiance, that the issuance of First
Defiance Shares pursuant to this Agreement need not be registered pursuant to
the Securities Act of 1933 (the "Securities Act") or pursuant to any applicable
state law, or (b) effectively registered the First Defiance Shares pursuant to
the Securities Act and pursuant to any applicable state law;
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(5) The representations and warranties of Agency and the
Agency Shareholders contained in Section 7 of this Agreement shall be true in
all material respects at and as of the date hereof and at and as of the day of
the Closing as if made at and as of such time;
(6) Agency and the Agency Shareholders shall have duly
performed and complied in all material respects with all agreements, covenants
and conditions required by this Agreement to be performed or complied with by
Agency and the Agency Shareholders before or on the day of the Closing;
(7) There shall not have been a material adverse change in the
financial condition, assets, liabilities, obligations, properties, business or
prospects of First Defiance or Agency after the date of this Agreement;
(8) Agency and the Agency Shareholders shall have delivered to
First Defiance a certificate dated the day of the Closing to the effect set
forth in subsections (5), (6), (7), (11), (12), (15), (16) and (17) of this
Section 10.a. and such other certificates and documents to evidence the taking
of requisite actions in connection with this Agreement as First Defiance may
reasonably request;
(9) There shall not be any action or proceeding commenced by
or before any court or governmental agency or authority in the United States, or
threatened by any governmental agency or authority in the United States, that
challenges or seeks to prevent or delay the consummation of the transactions
contemplated by this Agreement or seeks to impose material limitations on the
ability of First Defiance to exercise full rights of ownership of the assets or
business of Agency;
(10) There shall not have been proposed, nor shall there be in
effect, any federal or state law, rule, regulation, order or statement of policy
that, in the reasonable judgment of First Defiance, would: (a) prevent or delay
the consummation of the transactions contemplated by this Agreement or interfere
with the reasonable operation of the business of First Defiance or Agency; (b)
materially adversely affect the ability of First Defiance to enjoy the economic
or other benefits of the transactions contemplated by this Agreement; or (c)
impose any material adverse condition, limitation or requirement on First
Defiance in connection with the transactions contemplated by this Agreement;
(11) Agency shall not have incurred any damage, destruction or
similar loss, not covered by insurance, materially affecting its businesses or
properties;
(12) The Agency Reorganization shall have been completed, if
required by First Defiance;
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(13) Each of the Agency Shareholders shall have executed and
delivered to First Defiance an employment agreement in the form attached hereto
as Exhibit B, to be effective at the Effective Time;
(14) No accounts payable by Agency shall have remained unpaid
more than 45 days as of the date of the Closing;
(15) All notes payable by Agency shall be current in
accordance with their terms;
(16) Each of the Agency Shareholders shall have executed and
delivered to First Defiance a representation and acknowledgment in the form
attached hereto as Exhibit A;
(17) All of the Agency Shareholders shall have duly signed an
action in writing by the shareholders of the Agency adopting this Agreement and
approving the transactions contemplated herein;
(18) First Defiance shall have received certificates dated as
of a date as close as practicable to the Closing date from appropriate
authorities as to the good standing of Agency and its subsidiaries; and
(19) Each of the insurance companies with which Agency
currently has an agency or brokerage agreement shall have agreed prior to the
Closing to the continuation of its current agreement with Agency or a subsidiary
of Agency following the Closing or executed prior to the Closing a new agreement
with Agency or a subsidiary of Agency, satisfactory to First Defiance, to
continue in effect after the Effective Time.
b. Conditions to the Obligations of Agency and the Agency Shareholders.
The obligations of Agency and the Agency Shareholders to
effect the transactions contemplated by this Agreement shall be subject to the
fulfillment of each of the following conditions:
(1) The representations and warranties of First Defiance
contained in Section 8 of this Agreement shall be true in all material respects
at and as of the date hereof and at and as of the date of the Closing as if made
at and as of such time;
(2) There shall not be in effect any federal or state law,
rule or regulation or any order or decision of a court of competent jurisdiction
which prevents or materially delays the consummation of the transactions
contemplated by this Agreement;
(3) First Defiance shall have duly performed and complied in
all material respects with all agreements, covenants and conditions required by
this Agreement to be performed or complied with by them before or at the
Closing;
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(4) There shall not have been a material adverse change in the
financial condition, assets, liabilities, obligations, properties, business or
prospects of First Defiance after the date of this Agreement;
(5) First Defiance shall have delivered to Agency and the
Agency Shareholders a certificate dated the day of the Closing and signed by the
President and the Chief Financial Officer of First Defiance to the effect set
forth in subsections (1), (3) and (4) of this Section 10.b; and
(6) First Defiance shall have executed and delivered to each
of the Agency Shareholders an employment agreement in the form attached hereto
as Exhibit B, to be effective at the Effective Time.
11. Termination. This Agreement may be terminated:
a. By mutual consent of the parties;
b. By any party to this Agreement if the Closing shall not have
occurred on or before December 31, 1998; provided, however, that a party who is
then in breach of any of its representations, warranties, covenants or
agreements under this Agreement in any material respect may not exercise such
right of termination if it has received notice from the non-breaching party that
the non-breaching party is seeking specific performance of the breaching party's
obligations under this Agreement; provided further, however, that no such
termination shall relieve the breaching party from liability for a breach that
occurs prior to such termination;
c. By First Defiance if any event occurs which, in the reasonable
opinion of the Board of Directors of First Defiance, would preclude satisfaction
of any of the conditions set forth in Section 10.a. of this Agreement;
d. By Agency if any event occurs which, in the reasonable opinion of
the Board of Directors of Agency, would preclude satisfaction of any of the
conditions set forth in Section 10.b. of this Agreement; and
e. By any party to this Agreement if the market value of First Defiance
Shares, based upon the closing sale price of First Defiance Shares on The Nasdaq
National Market, should decline to less than $12.3172 per share.
12. Notice of Termination. In order to terminate this Agreement pursuant to
Section 11 of this Agreement, the party so acting shall give written notice of
such termination to all other parties. This Agreement shall terminate on the
date such notice is given.
a. Effect of Termination. In the event of the termination of this
Agreement, the provisions of this Agreement shall become void and have no
effect; provided, however, that (1)
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the provisions set forth in Section 9.i. and Section 9.k. of this Agreement
shall survive such termination and shall remain in full force and effect, and
(2) a termination of this Agreement shall not affect the liability of any party
for an uncured breach of any term or condition of this Agreement.
b. Amendment. This Agreement may be amended at any time only by an
instrument in writing signed on behalf of each of the parties hereto.
c. Waiver. Any term or provision of this Agreement may be waived in
writing at any time by the party which is, or whose shareholders are, entitled
to the benefits thereof.
13. Miscellaneous
a. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
If to Agency, to:
Insurance Center of Defiance, Inc.
507 Fifth Street
Defiance, Ohio 43512
Attention: Steven P. Grosenbacher
with a copy to:
Marc F. Warncke
Clemens, Korhn, Liming & Warncke
Block Six Business Center
419 Fifth Street, Suite 2000
P.O. Box 787
Defiance, Ohio 43512
If to Steven P. Grosenbacher, to:
Steven P. Grosenbacher
1161 Valley Forge Drive
Defiance, Ohio 43512
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If to Lawrence H. Woods, to:
Lawrence H. Woods
1500 East River Drive
Defiance, Ohio 43512
If to Timothy S. Whetstone, to:
Timothy S. Whetstone
1237 Fallen Timbers Drive
Defiance, Ohio 43512
If to First Defiance, to:
First Defiance Financial Corp.
601 Clinton Street
Defiance, Ohio 43512
Attention: Don Van Brackel
with a copy to:
Cynthia A. Shafer
Vorys, Sater, Seymour and Pease
Suite 2100, Atrium Two
221 E. Fourth Street
P. O. Box 0236
Cincinnati, Ohio 45201-0236
b. Entire Agreement. This Agreement (including the exhibits, documents
and instruments referred to herein or therein) (1) constitutes the entire
agreement of the parties and supersedes all other prior agreements and
understandings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof; (2) is not intended to and shall not
confer any rights or remedies hereunder upon any person other than First
Defiance, Agency and the Agency Shareholders; (3) shall not be assigned by
operation of law or otherwise; and (4) shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of Ohio,
except to the extent that federal law may be applicable.
c. Execution In Counterparts. This Agreement may be executed in two or
more counterparts which together shall constitute a single Agreement.
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d. Headings. The headings of articles and sections herein are for
convenience of reference only, do not constitute a part of this Agreement and
shall not be deemed to limit or affect any of the provisions hereof.
e. Nonsurvival of Representations and Warranties. No representation or
warranty shall survive the Closing.
f. Liabilities and Specific Performance. Each party to this Agreement
recognizes that, if it fails to perform, observe or discharge any of its
obligations under this Agreement, remedies at law may not provide adequate
relief to the other party or parties. Therefore, each party is hereby authorized
to demand specific performance of this Agreement, and is entitled to temporary
and permanent injunctive relief, in a court of competent jurisdiction at any
time when any other party fails to comply with any of the provisions of this
Agreement applicable to it, in addition to any other remedy that may be
available in law or equity. To the extent permitted by applicable law, each
party hereby irrevocably waives any defense that it might have based on the
adequacy of a remedy at law that might be asserted as a bar to such remedy of
specific performance or injunctive relief.
IN WITNESS WHEREOF, First Defiance, Agency, Steven P. Grosenbacher,
Lawrence H. Woods and Timothy S. Whetstone signed or caused this Agreement to be
signed by their respective duly authorized officers effective on the date first
above written.
ATTEST: FIRST DEFIANCE FINANCIAL CORP.
_____________________________ By: _________________________
_____________________________ Don Van Brackel
_____________________________ its President
ATTEST: FIRST DEFIANCE MERGER CORP.
(to be organized)
_____________________________ By: _________________________
_____________________________ _________________________
_____________________________ its __________________
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ATTEST: INSURANCE CENTER OF
DEFIANCE, INC.
_____________________________ By: _________________________
_____________________________ Steven P. Grosenbacher
_____________________________ its President
_____________________________ ________________________
Steven P. Grosenbacher Lawrence H. Woods
_____________________________
Timothy S. Whetstone
ACKNOWLEDGMENT
STATE OF OHIO )
) SS:
COUNTY OF ___________ )
BE IT REMEMBERED that on this ____ day of ____________,1998, personally
came before me, a Notary Public in and for the State and County aforesaid, Don
Van Brackel, President of First Defiance Financial Corp., and duly executed the
Agreement and Plan of Reorganization before me and acknowledged the same to be
his act and deed and the act and deed of said corporation and that the facts
therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ____ day
of _______________, 1998.
---------------------------------
Notary Public
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STATE OF OHIO )
) SS:
COUNTY OF ___________ )
BE IT REMEMBERED that on this ____ day of ____________,199_, personally
came before me, a Notary Public in and for the State and County aforesaid,
___________________, __________ of First Defiance Merger Corp., and duly
executed the Agreement and Plan of Reorganization before me and acknowledged the
same to be his act and deed and the act and deed of said corporation and that
the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ____ day
of _______________, 1998.
---------------------------------
Notary Public
STATE OF OHIO )
) SS:
COUNTY OF ___________ )
BE IT REMEMBERED that on this ____ day of _______________, 1998,
personally came before me, a Notary Public in and for the State and County
aforesaid, Stephen P. Grosenbacher, President of Insurance Center of Defiance,
Inc., and duly executed the Agreement and Plan of Reorganization before me and
acknowledged the same to be his act and deed and the act and deed of said
corporation and that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ____ day
of _______________, 1998.
---------------------------------
Notary Public
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STATE OF OHIO )
) SS:
COUNTY OF ___________ )
BE IT REMEMBERED that on this ____ day of _______________, 1998,
personally came before me, a Notary Public in and for the State and County
aforesaid, Steven P. Grosenbacher, and duly executed the Agreement and Plan of
Reorganization before me and acknowledged the same to be his act and deed and
that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ____ day
of _______________, 1998.
---------------------------------
Notary Public
STATE OF OHIO )
) SS:
COUNTY OF __________ )
BE IT REMEMBERED that on this ____ day of _______________, 1998,
personally came before me, a Notary Public in and for the State and County
aforesaid, Lawrence H. Woods, and duly executed the Agreement and Plan of
Reorganization before me and acknowledged the same to be his act and deed and
that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ____ day
of _______________, 1998.
---------------------------------
Notary Public
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STATE OF OHIO )
) SS:
COUNTY OF ___________ )
BE IT REMEMBERED that on this ____ day of _______________, 1998,
personally came before me, a Notary Public in and for the State and County
aforesaid, Timothy S. Whetstone, and duly executed the Agreement and Plan of
Reorganization before me and acknowledged the same to be his act and deed and
that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ____ day
of _______________, 1998.
---------------------------------
Notary Public
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EXHIBIT A
_______________, 1998
First Defiance Financial Corp.
601 Clinton Street
Defiance, Ohio 43512
Ladies and Gentlemen:
This letter is being delivered pursuant to and in accordance with the
Agreement of Merger and Plan of Reorganization dated this date (the "Agreement")
by and among First Defiance Financial Corp., an Ohio corporation ("First
Defiance"), Insurance Center of Defiance, Inc., an Ohio corporation ("Agency"),
Steven P. Grosenbacher, Lawrence H. Woods and Timothy S. Whetstone, to which
First Defiance Merger Corp. will become a party. Pursuant to such Agreement, I
may receive common shares of First Defiance pursuant to the Agreement (the
"Shares"). I have been advised that in order for the issuance of common shares
of First Defiance pursuant to the Agreement to qualify for certain exemptions
from registration pursuant to federal and state securities laws, First Defiance
must receive assurance of certain matters, and the transfer of the Shares by me
will be subject to certain restrictions. In addition, I have been advised that
as of the date hereof, I may be deemed to be an "affiliate" of Agency, as that
term is defined for purposes of Rule 145 of the Rules and Regulations of the
Securities and Exchange Commission (the "Rules and Regulations") under the
Securities Act of 1933 (the "Act"), that the Shares will be "restricted
securities" within the meaning of Rule 144 of the Rules and Regulations.
I hereby represent, warrant and covenant to First Defiance as follows:
1. My principal residence is located in the State of Ohio.
2. During the period of nine months from the date on which the
Shares are issued to me pursuant to the Agreement, I shall
resell any of such Shares only to persons resident within the
State of Ohio to whom I will have provided notice that the
same restrictions on transfer will apply to such person.
3. I am aware that the Shares will be deemed "restricted
securities" as defined in Rule 144 of the Act. In order to
sell the Shares in compliance with Rule 144, I must hold the
Shares for at least one year and may thereafter sell the
Shares only in accordance with certain procedures and subject
to limitations on the amount that may be sold in any
three-month period.
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4. I understand that First Defiance is under no obligation to
register the sale, transfer or other disposition of the
Shares.
5. I am aware that no market may exist for the resale of such
Shares.
6. I am acquiring such Shares for investment and not for the
distribution of such Shares.
7. I am aware of the following restrictions on the transfer of
such Shares:
a. A restrictive legend will be placed on the
certificate representing the Shares restricting their
transfer to residents of Ohio during the nine months
following issuance, as described above.
b. The following additional restrictive legends will be
placed on the certificate representing the Shares:
The shares represented by this certificate are
restricted securities and may not be sold,
transferred, pledged or hypothecated except pursuant
to (i) an effective registration statement
registering the shares under the Securities Act of
1933 (the "Act"), (ii) a transaction permitted by
Rule 144 promulgated under the Act as to which the
issuer has received satisfactory evidence of
compliance with the provisions of Rule 144, or (ii)
an opinion of counsel, satisfactory to issuer, that
the transfer is lawful.
The shares represented by this certificate were
issued in a transaction to which Rule 145 promulgated
under the Act applies. The shares represented by this
certificate may only be transferred in accordance
with the terms of an agreement dated as of
___________, 1998, between the registered holder
hereof and First Defiance Financial Corp., a copy of
which agreement is on file at the principal offices
of First Defiance Financial Corp.
c. Stop-transfer instructions will be issued to First
Defiance's transfer agent preventing the transfer of
the Shares by me without compliance with all of the
restrictions referenced herein.
8. I also understand that unless the transfer by me of the Shares
has been registered under the Act or is a sale made in
conformity with the provisions of Rule 145, First Defiance
reserves the right to put the following legend on the
certificates representing the shares of First Defiance issued
to my transferee:
The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), and were acquired from a person
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who received such shares in a transaction to which Rule 145
promulgated under the Act applies. The shares have been
acquired by the holder not with a view to, or for resale in
connection with, any distribution thereof within the meaning
of the Act and may not be sold, pledged or otherwise
transferred except in accordance with an exemption from the
registration requirements of the Act.
9. I shall not make any sale, transfer or other disposition of
the Shares in violation of the Act or the Rules and
Regulations.
10. I have carefully read this letter and discussed its
requirements and other applicable limitations upon my ability
to sell, transfer or otherwise dispose of the Shares, to the
extent I felt necessary, with my legal counsel or legal
counsel for the Agency.
Very truly yours,
___________________________
Accepted this ____ day of
_________________, 1998
by First Defiance Financial Corp.
By: __________________________
__________________________
__________________________
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EXHIBIT B
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into as of the
___ day of __________, 1998, by and among ______ Insurance Agency, Inc., an Ohio
corporation (the "EMPLOYER"); First Defiance Financial Corp., an Ohio
corporation ("FIRST DEFIANCE"); and _________________, an individual (the
"EMPLOYEE");
WITNESSETH:
WHEREAS, as a result of the skill, knowledge and experience of the
EMPLOYEE, the Boards of Directors of the EMPLOYER and FIRST DEFIANCE desire for
the EMPLOYER to retain the services of the EMPLOYEE as ________________ of the
EMPLOYER;
WHEREAS, the EMPLOYEE desires to serve as ____________ of the EMPLOYER;
and
WHEREAS, the EMPLOYER, FIRST DEFIANCE and the EMPLOYEE desire to enter
into this AGREEMENT to set forth the terms and conditions of the employment
relationship between the EMPLOYER and the EMPLOYEE;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the EMPLOYER, FIRST DEFIANCE and the EMPLOYEE hereby agree as
follows:
1. Employment and Term. Upon the terms and subject to the conditions of
this AGREEMENT, the EMPLOYER hereby employs the EMPLOYEE, and the EMPLOYEE
hereby accepts employment, as __________________ of the EMPLOYER. The TERM of
this AGREEMENT shall commence on _____________________, 1998, and shall end
thirty-six (36) months thereafter (the "TERM"), subject to earlier termination
as provided herein, except that the provisions of Sections 6 and 7 of this
AGREEMENT shall remain in effect as set forth in such Sections.
2. Duties of EMPLOYEE.
(a) General Duties and Responsibilities. The EMPLOYEE shall serve as
____________________ of the EMPLOYER. Subject to the direction of the Board of
Directors of the EMPLOYER, the EMPLOYEE shall perform all duties and shall have
all powers which are commonly incident to the office of ___________________ or
which, consistent therewith, are delegated to him by the Board of Directors [or
the President]. Such duties shall include, but not be limited to, marketing of
the EMPLOYER and its services and assisting in the supervision of other
employees of the EMPLOYER.
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(b) Devotion of Entire Time to the Business of the EMPLOYER. The
EMPLOYEE shall devote his entire productive time, ability and attention during
normal business hours throughout the TERM to the faithful performance of his
duties to the EMPLOYER and its holding company and their subsidiaries and
affiliates. The EMPLOYEE shall not directly or indirectly render any services of
a business, commercial or professional nature to any person or organization
other than the EMPLOYER and its holding company and their subsidiaries and
affiliates without the prior written consent of the Board of Directors of the
EMPLOYER; provided, however, that the EMPLOYEE shall not be precluded from (i)
reasonable participation in community, civic, charitable or similar
organizations; or (ii) the pursuit of personal investments which do not
interfere or conflict with the performance of the EMPLOYEE's duties to the
EMPLOYER. Nothing in this Section shall limit the EMPLOYEE's right to invest in
securities of any business that does not provide services or products of the
type or competing with those provided by the EMPLOYER or its subsidiaries or
affiliates or securities constituting less than five percent of the outstanding
securities of a company whose securities are publicly traded.
3. Compensation. The EMPLOYEE shall receive during the TERM commissions
in the amount of (a) thirty-five percent (35%) of the commissions received by
the EMPLOYER for insurance sold by the EMPLOYEE and for force placed insurance
for loan customers of FIRST DEFIANCE's subsidiaries processed by the EMPLOYEE,
plus (b) one and sixty-seven hundredths percent (1.67%) of the aggregate of all
commissions paid to the EMPLOYER for all insurance sold by the EMPLOYER from all
locations of the EMPLOYER now or hereafter in existence, including force placed
insurance for loan customers of FIRST DEFIANCE's subsidiaries, credit life
insurance sold through FIRST DEFIANCE's subsidiaries and insurance purchased
through EMPLOYER by FIRST DEFIANCE or any subsidiary of FIRST DEFIANCE.
4. Termination of Employment.
(a) General. The employment of the EMPLOYEE shall terminate at any time
during the TERM (i) at the option of the EMPLOYER upon the delivery by the
EMPLOYER of written notice of employment termination to the EMPLOYEE, or (ii) at
the option of the EMPLOYEE upon the delivery by the EMPLOYEE of written notice
of termination to the EMPLOYER if, unless consented to in writing by the
EMPLOYEE, (A) there is a material reduction in responsibilities or authority of
the EMPLOYEE or the EMPLOYEE is assigned duties or responsibilities
substantially inconsistent with those normally associated with EMPLOYEE's
position described in Section 2(a) of this AGREEMENT), (B) the EMPLOYEE is no
longer ____________________ of the EMPLOYER, (C) the EMPLOYEE is required to
move his personal residence, or perform his principal executive functions, more
than thirty-five (35) miles from his primary office as of the date of the
commencement of the TERM of this AGREEMENT, or (D) the EMPLOYER otherwise
breaches this AGREEMENT in any material respect.
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<PAGE>
(b) Termination for JUST CAUSE. In the event that the EMPLOYER
terminates the employment of the EMPLOYEE before the expiration of the TERM
because of the EMPLOYEE's personal dishonesty, incompetence, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure or
refusal to perform the duties and responsibilities assigned in this AGREEMENT,
willful violation of any law, rule, regulation (other than traffic violations or
similar offenses) or final cease-and-desist order, conviction of a felony or for
fraud or embezzlement, or material breach of any provision of this AGREEMENT
(collectively, "JUST CAUSE"), the EMPLOYEE shall not receive, and shall have no
right to receive, any compensation or other benefits for any period after such
termination.
(c) Termination Other Than for JUST CAUSE. In the event that the
employment of the EMPLOYEE is terminated by the EMPLOYER or is terminated by the
EMPLOYEE in accordance with Section 4(a)(ii) of this AGREEMENT before the
expiration of the TERM other than for JUST CAUSE, the EMPLOYER shall be
obligated (A) to pay to the EMPLOYEE, his designated beneficiaries or his
estate, each month for the remainder of the TERM, an amount equal to the average
monthly commission paid to the EMPLOYEE during the twelve months prior to the
EMPLOYEE's termination of employment or during the term of this AGREEMENT prior
to the EMPLOYEE's termination, whichever period is shorter; and (B) to provide
to the EMPLOYEE, at the EMPLOYER's expense, health, life and disability benefits
as provided in Section 3(d) of this Agreement, until the expiration of the TERM
or until the earlier date the EMPLOYEE obtains substantially equivalent coverage
from another employer. In the event that payments pursuant to this subsection
(c) would result in the imposition of a penalty tax pursuant to Section 280G of
the Internal Revenue Code of 1986, as amended ("SECTION 280G"), such payments
shall be reduced to the maximum amount which may be paid under SECTION 280G
without exceeding those limits. In the event a reduction in payments is
necessary in order to comply with the requirements of this AGREEMENT relating to
the limitations of SECTION 280G, the EMPLOYEE may determine, in his sole
discretion, which categories of payments are to be reduced or eliminated.
(d) Death of the EMPLOYEE. The TERM shall automatically terminate upon
the death of the EMPLOYEE. In the event of such death, the EMPLOYEE's estate
shall be entitled to receive the compensation due the EMPLOYEE through the last
day of the calendar month in which the death occurred, except as otherwise
specified herein.
5. Consolidation, Merger or Sale of Assets. Nothing in this AGREEMENT
shall preclude the EMPLOYER from consolidating with, merging into, or
transferring all, or substantially all, of its assets to another corporation
that assumes all of the EMPLOYER's obligations and undertakings hereunder. Upon
such a consolidation, merger or transfer of assets, the term "EMPLOYER," as used
herein, shall mean such other corporation or entity, and this AGREEMENT shall
continue in full force and effect.
6. Covenants Not to Compete or Solicit.
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<PAGE>
(a) Covenant Not to Compete. Commencing on the date of the EMPLOYEE's
termination of employment by EMPLOYER and ending on the fifth anniversary
thereof (the "RESTRICTED COMPETITION PERIOD"), the EMPLOYEE agrees that he shall
not, and shall not permit any of his AFFILIATES (hereinafter defined), alone,
together or in association with others, either as principal, agent, owner,
shareholder, officer, director, partner, lender, investor, independent
contractor, consultant or in any other capacity, to engage in, have a financial
interest in or be in any way connected or affiliated with, or render advice or
services to any natural person, organization or entity of any type that engages
in any activity which would compete in any way in any county in which EMPLOYER
has an office at the time of EMPLOYEE's termination of employment with EMPLOYER
with the business operated by the EMPLOYER of selling as agent insurance of all
types. For purposes of this Section 6, an "AFFILIATE" of a person shall mean (i)
any natural person, organization or entity of any type that directly, or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with, such specified person; (ii) any relative or spouse of
such person, or any relative of such spouse, any one of whom has the same home
as such person; (iii) any trust or estate in which such person or any of the
persons specified in (ii) collectively own ten percent or more of the total
beneficial interest or of which any of such persons serve as trustee, executor
or in any similar capacity; or (iv) any corporation or other organization in
which such person or any of the persons specified in (ii) are the beneficial
owners collectively of ten percent or more of any class of equity securities or
ten percent or more of the equity interest. For purposes of the definition of
the term "AFFILIATE," "control" means the power to direct the management and
policies of such person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise. The provision of financial
planning services or the sale as agent or broker of securities, other than the
sale of insurance products or the referral of persons to an insurance agency
competing with the EMPLOYER, will not be deemed to be competition with the
business of the EMPLOYER for purposes of this Section 6.
(b) Covenant Not to Solicit. During the RESTRICTED COMPETITION PERIOD,
the EMPLOYEE further agrees that he will not, and will not permit any AFFILIATE,
directly or indirectly, to solicit, divert, take away or interfere with, or
attempt to solicit, divert, take away or interfere with, the relationship of the
EMPLOYER with any person who is or was, at any time commencing two years
immediately before the date of this AGREEMENT and ending on the date of
termination of the EMPLOYEE's employment with EMPLOYER, a customer, employee or
supplier of the EMPLOYER, FIRST DEFIANCE, First Federal Savings and Loan, a
wholly owned subsidiary of FIRST DEFIANCE ("FIRST FEDERAL"), or any company
acquired by FIRST DEFIANCE or FIRST FEDERAL during the period commencing two
years immediately before the date of this AGREEMENT and ending on the date of
termination of the EMPLOYEE's employment with EMPLOYER.
(c) Interpretation of Covenants. The parties to this AGREEMENT
acknowledge and agree that the duration and area for which the covenant not to
compete and the covenant not to solicit are to be effective are fair and
reasonable and are reasonably required for the protection of the business of the
EMPLOYER. In the event that any court determines that the time period or the
area, or both of them, are unreasonable as to any covenant and that such
covenant is to that
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extent unenforceable, the parties hereto agree that the covenant shall remain in
full force and effect for the greatest time period and in the greatest area that
would not render it unenforceable. The parties intend that each covenant shall
be deemed to be a series of separate covenants, one for each and every county of
each and every state of the United States of America and one for each and every
political subdivision of each and every other country in which the covenant not
to compete or other covenant is intended to be effective and is not proscribed
by law.
(d) Waiver of Defense. The EMPLOYEE hereby expressly waives any
objection to or defense in respect of the geographical scope or duration of the
restriction on competition and other covenants for the protection of the
business of the EMPLOYER provided in this Section 6.
(e) Termination Upon Acquisition of FIRST DEFIANCE. In the event that
(1) FIRST DEFIANCE becomes a wholly owned subsidiary of another corporation, (2)
FIRST DEFIANCE merges or combines with another company in a transaction in which
FIRST DEFIANCE is not the surviving entity, or (3) all or substantially all of
the assets of FIRST DEFIANCE are sold, then the provisions of this Section 6
shall immediately terminate and have no further force or effect.
7. Confidential Information. The EMPLOYEE acknowledges that during his
employment he will learn and have access to confidential information regarding
the EMPLOYER and its customers and businesses. The EMPLOYEE agrees and
covenants, during the term of this AGREEMENT and thereafter, not to disclose or
use for his own benefit, or the benefit of any other person or entity, any
confidential information, unless or until the EMPLOYER consents to such
disclosure or use or such information becomes common knowledge in the industry
or is otherwise legally in the public domain. The EMPLOYEE shall not, during the
term of this AGREEMENT and thereafter, knowingly disclose or reveal to any
unauthorized person any confidential information relating to the EMPLOYER, its
parent, subsidiaries or affiliates, or to any of the businesses operated by
them, and the EMPLOYEE confirms that such information constitutes the exclusive
property of the EMPLOYER. The EMPLOYEE shall not otherwise knowingly act or
conduct himself (a) to the material detriment of the EMPLOYER, its subsidiaries,
or affiliates, or (b) in a manner which is inimical or contrary to the interests
of the EMPLOYER.
8. Equitable Remedies. The parties hereto acknowledge and agree that
the EMPLOYEE's obligations contained in this AGREEMENT are of special and unique
character which give them a peculiar value to the EMPLOYER and that EMPLOYER
will suffer immediate and irreparable harm to its good will and business which
will not be compensable by damages alone in the event the EMPLOYEE repudiates or
breaches the provisions hereof or threatens or attempts to do so. The EMPLOYEE,
therefore, expressly agrees that, in addition to any other rights or remedies
that the EMPLOYER may have at law or in equity or by reason of any other
agreement, the EMPLOYER shall be entitled to obtain a temporary, preliminary
and/or permanent injunction in order to prevent or restrain any such breach by
the EMPLOYEE or any
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partner, agent, representative, employer, employee and/or any other persons
acting directly or indirectly, in concert or in participation with the EMPLOYEE.
9. Nonassignability. Neither this AGREEMENT nor any right or interest
hereunder shall be assignable by the EMPLOYEE, his beneficiaries or his legal
representatives without the EMPLOYER's prior written consent; provided, however,
that nothing in this Section 9 shall preclude (a) the EMPLOYEE from designating
a beneficiary to receive any benefits payable hereunder upon his death, or (b)
the executors, administrators, or other legal representatives of the EMPLOYEE or
his estate from assigning any rights hereunder to the person or persons entitled
thereto.
10. No Attachment. Except as required by law, no right to receive
payment under this AGREEMENT shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge or hypothecation or to
execution, attachment, levy, or similar process of assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void and of no effect.
11. Binding Agreement. This AGREEMENT shall be binding upon, and inure
to the benefit of, the EMPLOYEE and the EMPLOYER and their respective permitted
successors and assigns.
12. Amendment of AGREEMENT. This AGREEMENT may not be modified or
amended, except by an instrument in writing signed by the parties hereto.
13. Waiver. No term or condition of this AGREEMENT shall be deemed to
have been waived, nor shall there be an estoppel against the enforcement of any
provision of this AGREEMENT, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver, unless specifically stated therein, and each waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than the act specifically waived.
14. Severability. If, for any reason, any provision of this AGREEMENT
is held invalid, such invalidity shall not affect the other provisions of this
AGREEMENT not held so invalid, and each such other provision shall, to the full
extent consistent with applicable law, continue in full force and effect. If
this AGREEMENT is held invalid or cannot be enforced, then any prior Agreement
between the EMPLOYER (or any predecessor thereof) and the EMPLOYEE shall be
deemed reinstated to the full extent permitted by law, as if this AGREEMENT had
not been executed.
15. Headings. The headings of the paragraphs herein are included solely
for convenience of reference and shall not control the meaning or interpretation
of any of the provisions of this AGREEMENT.
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16. Governing Law; Regulatory Authority. This AGREEMENT has been
executed and delivered in the State of Ohio and its validity, interpretation,
performance and enforcement shall be governed by the laws of the State of Ohio,
except to the extent that federal law is governing.
17. Effect of Prior Agreements. This AGREEMENT contains the entire
understanding between the parties hereto and supersedes any prior employment
agreement between the EMPLOYER or any predecessor of the EMPLOYER and the
EMPLOYEE.
18. Notices. Any notice or other communication required or permitted
pursuant to this AGREEMENT shall be deemed delivered if such notice or
communication is in writing and is delivered personally or by facsimile
transmission or is deposited in the United States mail, postage prepaid,
addressed as follows:
If to the EMPLOYER or FIRST DEFIANCE:
First Defiance Financial Corp.
601 Clinton Street
Defiance, Ohio 43512
Attention: Mr. Don Van Brackel
If to the EMPLOYEE:
____________________
____________________
____________________
IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be
executed by their duly authorized officers or have signed this AGREEMENT, each
as of the day and year first above written.
Attest: ____________ INSURANCE AGENCY, INC.
________________________________ By_________________________________
Attest: FIRST DEFIANCE FINANCIAL CORP.
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________________________________ By_________________________________
Attest:
- -------------------------------- -----------------------------------
[Employee]
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