EXHIBIT 10
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STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of November
13, 2008, is entered into among FFD Financial Corporation, an Ohio corporation
(the "Company") and the persons and entities that are signatories hereto
(collectively, "Bulldog" and each individually a "Member").
WITNESSETH:
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WHEREAS, the Members beneficially own an aggregate of 65,833 common
shares, no par value, of the Company (the "Bulldog Shares") and have offered to
sell the Bulldog Shares to the Company at a price of $12.00 per share;
WHEREAS, the Company has accepted the offer of the Members to purchase
the Bulldog Shares from the Members at a price of $12.00 per share;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements set forth herein and for other good and valuable
consideration the receipt of which is hereby acknowledged, the parties,
intending to be legally bound hereby, agree as follows:
ARTICLE I
Purchase and Sale of the Bulldog Shares
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Section 1.1 Purchase and Sale of Bulldog Shares. Upon the terms and
conditions set forth in this Agreement, each Member hereby sells to the Company
the number of shares set forth beside such Member's name on Schedule A,
attached hereto and incorporated herein by reference, at a price of $12.00 per
share, for an aggregate purchase price of $789,996.00 for all of the Bulldog
Shares (the "Purchase Price"). The Members and Company agree that the sale will
take place through Xxxx Xxxxxx Securities, Inc. (the "Broker"). After the
Company's receipt of an executed trade confirmation, on the settlement date the
Company will deliver by wire transfer to the Broker the Purchase Price in
immediately available U.S. funds, and each of the Members agrees that the
Company shall not be responsible for the further distribution to such Member of
its share of the Purchase Price.
ARTICLE II
Representations and Warranties
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Section 2.1 Representations and Warranties of Bulldog and the Members.
Each Member, jointly and severally, hereby represents and warrants to the
Company as follows:
(a) Each Member has full legal right, power and authority to enter
into and perform his or its obligations under this Agreement. This
Agreement is a valid and binding obligation of each Member, enforceable
against such Member in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and to general principles of
equity. As to each Member that is not an individual, (i) such Member has
full power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby, (ii) the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all
necessary action on the part of such Member, (iii) such Member is duly
and validly formed and existing and in good standing under the laws of
the state or jurisdiction of its organization, and (iv) if required, is
registered as an investment adviser under the Investment Advisors Act of
1940 and under any other applicable federal or state securities laws.
(b) Neither the execution and delivery of this Agreement by any
Member nor the restrictions, obligations and limitations imposed upon any
Member hereunder conflicts with, or constitutes a violation of or default
under, any statute, law, regulation, judgment, ruling, order or decree
applicable to such Member, or any contract, commitment, agreement,
understanding, arrangement, charter or governing document or instrument
or restriction of any kind to which such Member is a party or by which
such Member or such Member's assets or property is bound.
(c) Except as set forth opposite each Member's name on Schedule A,
none of the Members, nor any of their respective "affiliates" or
"associates" (as such terms are used in Rule 12b-2 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), currently (i)
owns, beneficially or of record, any common shares of the Company or any
securities of the Company convertible into, exchangeable for or
exercisable for common shares of the Company ("FFD Shares"), or (ii) has
any contract, agreement, arrangement or understanding under which it
intends to or has the right to acquire any FFD Shares.
(d) Except for pledges arising from the Bulldog Shares being held
in a margin account, which pledges will be released in full in connection
with the transactions contemplated by this Agreement, each Member owns,
either beneficially or of record, his or its Bulldog Shares free and
clear of and any all liens, security interests, judgments, charges,
claims, options, rights of first refusal or encumbrances whatsoever. When
sold by the Members to the Company, the Company will acquire full right,
title and interest in and to all of the Bulldog Shares, free and clear of
any and all liens, pledges, security interests, judgments, charges,
claims, options, rights of first refusal or encumbrances whatsoever.
(e) None of the Members, nor Bulldog, holds 10% or more of the
outstanding common shares of the Company and neither such Member, nor
Bulldog, is an "interested shareholder" as such term is defined in
Chapter 1704 of the Ohio Revised Code.
ARTICLE III
Covenants
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Section 3.1 Restrictions on Certain Actions. Bulldog and each Member
agrees that, during the period commencing on the date of this Agreement and
ending on the tenth anniversary thereof (the "Term"), none of them will,
directly or indirectly or in concert with one or more other persons or
entities:
(a) Acquire, offer or propose to the Company or any third party to
acquire, solicit an offer to sell or agree to acquire by purchase, by
gift, by joining a partnership, limited partnership, corporation, limited
liability company, joint venture trust, syndicate or other "group" (as
such term is used in Section 13(d)(3) of the Exchange Act, such term to
have such meaning throughout this Agreement) or otherwise, directly or
indirectly, (i) any assets, businesses or properties of the Company or
(ii) record or beneficial ownership in any manner of any FFD Shares;
(b) Participate in the formation or intentionally encourage
the formation of, join or in any way intentionally participate with, any
"person" (as such term is used in Section 13(d)(3) of the Exchange Act and
Section 2(2) of the Securities Act of 1933, as amended (the "Securities Act"),
which owns or seeks to acquire beneficial ownership of any FFD Shares;
(c) Solicit, or participate in any "solicitation" of "proxies" or
become a "participant" in any such solicitation (as such terms are
defined or used in Regulation 14A under the Exchange Act) with respect to
the Company;
(d) Initiate, propose or otherwise solicit shareholders for the
approval of one or more shareholder proposals with respect to the Company
or participate with any other person with respect to a shareholder
proposal of the Company or induce any other person to initiate any
shareholder proposal;
(e) Seek to elect or remove or otherwise encourage the election or
removal of any member of the Board of Directors of the Company or seek to
have called any meeting of the shareholders of the Company;
(f) Deposit any FFD Shares in a voting trust or subject them to a
voting agreement, proxy (other than a proxy solicited by the Company) or
other agreement, arrangement or understanding with respect to the voting
of such FFD Shares;
(g) Otherwise, alone or in concert with others:
(i) seek to control or influence the management of the
Company, the Board of Directors of the Company or the policies or
affairs of the Company (either directly through actions as a
shareholder, indirectly through publicity or otherwise);
(ii) solicit, make or announce an intent to make, propose,
seek to effect, or negotiate with any other person (including,
without limitation, the Company) with respect to, (A) any form of
business combination or other extraordinary transaction with the
Company or any of its affiliates, (B) any restructuring,
recapitalization, similar transaction or other transaction not in
the ordinary course of business with respect to the Company or any
of its affiliates or (C) any tender offer or exchange offer for any
securities of the Company or any of its affiliates;
(iii) publicly disclose an intent, purpose, plan or proposal
with respect to any of the foregoing; or
(iv) assist, participate in, facilitate or solicit any effort
or attempt by any person to do so or seek to do any of the
foregoing.
(h) Solicit or entice, or attempt to solicit or entice, any
employee, consultant, director or officer of the Company or any of its
affiliates to terminate her/his employment or relationship with the
Company or such affiliate, or hire or commit to hire as an employee or
consultant any person that is an employee, consultant, officer or
director of the Company or any of its affiliates;
(i) Demand or request a copy of or access to the Company's
shareholder list or its other books and records;
(j) Demand or request a meeting with or direct any communication to
the Board of Directors or management of the Company; or
(k) Solicit, encourage, authorize or permit any of his or its
affiliates or associates to do any of the above.
Section 3.2 Dispositions in Certain Events. During the Term, Bulldog, any
Member or any of their respective affiliates or associates acquires any FFD
Shares in violation of this Agreement, such Member(s) will immediately dispose
of such FFD Shares to persons that are not affiliates or associates of Bulldog
or its Members.
Section 3.3 Covenant Not to Xxx. Neither the Members nor any of their
respective affiliates or associates will initiate, encourage or support any
litigation against the Company or its directors, officers, employees or agents
with respect to any actions, events or activities occurring prior to the date
of this Agreement. The Company will not initiate, encourage or support any
litigation against any Member for any events or activities based on conduct
occurring prior to the date of this Agreement.
ARTICLE IV
Miscellaneous
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Section 4.1 Enforcement. Each party hereto acknowledges and agrees that
irreparable damage would occur if any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached or threatened to be breached. Accordingly, the Company and its
affiliates on the one hand, and Bulldog and the Members on the other, will be
entitled to an injunction or injunctions to stop or prevent breaches of this
Agreement and to enforce specifically its provisions in addition to any other
remedy to which such party(ies) (and if, applicable, such party's affiliates)
may be entitled at law or in equity. No failure or delay in the exercise of any
power, right or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other right, power or
privilege. If an action is brought to enforce the provisions of this Agreement,
the party that prevails (which shall include obtaining injunctive relief) shall
be entitled to recover reasonable attorneys' fees and costs incurred for such
action.
Section 4.2 Entire Agreement; Amendment. This Agreement constitutes the
entire understanding of the parties with respect to the transactions
contemplated herein. This Agreement may be amended only by a writing executed
by all the parties.
Section 4.3 Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be unenforceable, the remaining provisions
shall remain in full force and effect.
Section 4.4 Headings. Descriptive headings are for convenience only and
will not control or affect the meaning or construction of any provision of this
Agreement.
Section 4.5 Counterparts. This Agreement may be executed in two or more
counterparts and by facsimile and electronic transmission, each of which shall
be deemed an original but all of which taken together shall constitute one and
the same Agreement.
Section 4.6 Successors and Assigns; Third Party Beneficiaries. This
Agreement shall bind the successors and assigns of the parties, and inure to
the benefit of any successor or assign of any of the parties; provided,
however, that no party may assign this Agreement without the other party's
prior written consent. Nothing in this Agreement, shall be construed to confer
upon or to give to any third party any legal or equitable right, remedy or
claim under or in respect of this Agreement; provided, however, that First
Federal Community Bank, an affiliate of the Company is an intended third party
beneficiary under this Agreement.
Section 4.7 Public Announcements. Each Member hereby covenants and agrees
that, except as required by applicable law, such Member will not make any
public announcement regarding this Agreement, the negotiations and discussions
related to this Agreement, the terms of this Agreement and the nature of the
transactions contemplated hereby, other than the filing of an amendment to the
Schedule 13D filed by Bulldog with the Securities and Exchange Commission to
show ownership of no FFD Shares.
Section 4.8 Schedule 13D. Promptly following the execution and delivery
of this Agreement, Bulldog will file a Schedule 13D amendment with the SEC
reporting ownership of no FFD Shares in a form previously provided to, and
reasonably satisfactory to, the Company and its legal counsel.
Section 4.9 Governing Law and Choice of Forum. This Agreement shall be
governed by and construed and enforced in accordance with the internal laws of
the State of Ohio without giving effect to the conflict of laws principles
thereof that would result in the appreciation of the law of any state other
than Ohio. Any litigation related to this Agreement may be maintained only in
the United States District Court for the Northern District of Ohio, Eastern
Division or in an Ohio state court in Tuscarawas County, and each party hereby
irrevocably consents and submits to the jurisdiction of that federal or state
court and irrevocably waives any objection the party may have based upon
improper venue, forum non conveniens or other similar doctrines or rules.
[REMAINDER OF PAGE INTENTIONALLY BLANK; SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed effective as of the date first set forth above.
FFD FINANCIAL CORPORATION BULLDOG INVESTORS
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxx
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Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxx
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Title: President/CEO Title: Principal
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XXXXXXX & WINTHROP
/s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx Name: Xxxxxxx Xxxxxxxxx
Title: President
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
EXHIBIT A
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AMOUNTS
PORTION OF
NUMBER OF FFD SHARES PURCHASE PRICE DUE
NAME OF MEMBER HELD BY THE MEMBER TO THE MEMBER
Xxxxxxx & Winthrop - $.00
Xxxxxx Xxxxx - .00
Xxxxxxx Xxxxxxxxx - .00
Bulldog Investors 65,833 .00
TOTAL: $.00
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