STANDBY PURCHASE AGREEMENT
Exhibit 10.1 Form of Standby Purchase Agreement
THIS STANDBY PURCHASE AGREEMENT (this “Agreement”), dated as of , 2011, is by and
among Central Federal Corporation, a Delaware corporation (the “Company”), and
(a “Standby Purchaser”).
WITNESSETH:
WHEREAS, the Company proposes, pursuant to the Registration Statement (as defined herein), to
commence an offering to holders of its common stock par value $0.01 per share (the “Common Stock”)
of record as of the close of business on a date to be determined by the Board of Directors of the
Company (the “Record Date”), of non-transferable rights (the “Rights”) to subscribe for and
purchase additional shares of Common Stock (the “New Shares”) at a subscription price of $1.00 per
share (the “Subscription Price”) for an aggregate offering amount of up to $25.0 million, subject
to adjustment based on the amount determined to be necessary to comply with Section 6(f) of this
Agreement (the “Rights Offering”); and
WHEREAS, pursuant to the Rights Offering, the Company will distribute to each of its shareholders
of record as of the Record Date, at no charge, one Right for each share of Common Stock held by
such shareholders as of the Record Date, and each Right will entitle the holder to purchase, for
each share of Common Stock owned as of the Record Date, New Shares at the Subscription Price (the
“Basic Subscription Privilege”); and
WHEREAS, each holder of Rights who exercises in full its Basic Subscription Privilege will be
entitled to subscribe for additional shares of Common Stock not otherwise purchased pursuant to the
exercise of the Basic Subscription Privileges up to the total number of New Shares, at the
Subscription Price (the “Over-Subscription Privilege”); and
WHEREAS, the Company may offer any shares of Common Stock that remain unsubscribed in the Rights
Offering at the expiration of the Rights Offering to the public, on a best efforts basis, at the
Subscription Price per share (the “Public Reoffer”); and
WHEREAS, for each four New Shares of Common Stock subscribed for in the Rights Offering or the
Public Reoffer, purchasers will receive, without charge, one warrant to purchase one additional
share of Common Stock at a purchase price of $1.00 per share (the “Warrant”). The Warrant will be
exercisable for a period of three years from the closing, may be exercised only by cash payment and
will be non-transferable. No fractional Warrants will be issued and Warrants will be rounded down.
By way of example, a purchaser purchasing four New Shares will receive one Warrant and a purchaser
purchasing seven New Shares will receive one Warrant, while a purchaser purchasing eight New Shares
will receive two Warrants; and
WHEREAS, in order to facilitate the Rights Offering, the Company has requested the Standby
Purchaser (as defined herein) to agree, and the Standby Purchaser has agreed, subject to the terms
and conditions of this Agreement, to acquire from the Company, at the Subscription Price,
shares of Common Stock and Warrants (such number of shares and
Warrants, the “Securities”) in conjunction with the Rights Offering (the “Standby Offering” and,
together with the Rights Offering and the Public Reoffer, if any, the “Stock Offerings”); and
NOW THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and
other good and valuable consideration, the parties hereto, intending to be legally bound hereby,
agree as follows:
Section 1. Certain Other Definitions. The following terms used herein shall have the
meanings set forth below:
“Affiliate” shall mean an affiliate (as defined in Rule 12b-2 under the Exchange Act) of such
Standby Purchaser; provided that such Standby Purchaser or any of its affiliates exercises
investment authority, including, without limitation, with respect to voting and dispositive rights
with respect to such affiliate.
“Agreement” shall have the meaning set forth in the preamble hereof.
“Bank” shall mean CFBank, a federally chartered savings association and a wholly owned subsidiary
of the Company,
“Bank Board” shall mean the board of directors of the Bank.
“Banking Regulators” means any federal or state authority or agency having jurisdiction over banks,
savings and loan associations, savings bank or other financial institutions or their holding
companies, including, without limitation, the Office of the Comptroller of the Currency, the
Federal Deposit Insurance Corporation and the Federal Reserve.
“Basic Subscription Privilege” shall have the meaning set forth in the recitals hereof.
“Board of Directors” shall mean the board of directors of the Company.
“Business Day” shall mean any day that is not a Saturday, a Sunday or a day on which banks are
generally closed in the State of Ohio.
“Certificate of Incorporation” shall have the meaning set forth in Section 3(d) hereof.
“Closing” shall mean the closing of the purchases described in Section 2 hereof, which shall be
held at the offices of Silver, Xxxxxxxx & Xxxx, L.L.P., in Washington, D.C., at 10:00 a.m., Eastern
Time, on the Closing Date or at such other place and time as shall be agreed upon by the parties
hereto.
“Closing Date” shall mean the date of the Closing.
“Commission” shall mean the United States Securities and Exchange Commission, or any successor
agency thereto.
“Common Stock” shall have the meaning set forth in the recitals hereof.
“Company” shall have the meaning set forth in the preamble hereof.
“Cure Period” shall have the meaning set forth in Section 6(h) hereof.
“Designated Investor Directors” shall have the meaning set forth in Section 7(a)(vi)(A)(ii) hereof.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated by the Commission thereunder.
“Market Adverse Effect” shall have the meaning set forth in Section 7(a)(iii) hereof.
“Material Adverse Effect” shall mean a material adverse effect on the financial condition, or on
the earnings, financial position, operations, assets, results of operations or business of the
Company and its Subsidiaries taken as a whole; provided that the meaning shall exclude any changes
from general economic, industry, market or competitive conditions or changes in laws, rules or
regulations generally affecting Persons in the Company’s industry so long as the Company is not
disproportionately affected.
“NASDAQ” shall mean the NASDAQ Capital Market.
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“New Shares” shall have the meaning set forth in the recitals hereof.
“Non-Disclosure Agreement” shall have the meaning set forth in Section 12 hereof.
“Over-Subscription Privilege” shall have the meaning set forth in the recitals hereof.
“Person” shall mean an individual, corporation, partnership, association, joint stock company,
limited liability company, joint venture, trust, governmental entity, unincorporated organization
or other legal entity.
“Prospectus” shall mean the final Prospectus, including any information relating to the Rights
Offering and the Public Reoffer, if any, including the Rights and the underlying shares of Common
Stock, and the Warrants and the Warrant Shares, and the additional shares of Common Stock and
Warrants and the Warrant Shares to be offered and sold in the Standby Offering, that is filed with
the Commission pursuant to Rule 424(b) and deemed by virtue of Rule 430A of the Securities Act to
be part of such registration statement, each as amended, for use in connection with the issuance of
the Rights and the Rights Offering.
“Record Date” shall have the meaning set forth in the recitals hereof.
“Registration Statement” shall mean the Company’s Registration Statement on Form S-1 to be filed
with the Commission together with all exhibits thereto and any prospectus supplement relating to
the Stock Offerings, the Rights and the underlying shares of Common Stock and Warrants and the
Warrant Shares, and the additional shares of Common Stock, Warrants and Warrant Shares to be
offered and sold in the Standby Offering, pursuant to which the Rights and underlying shares of
Common Stock, Warrants and Warrant Shares have been registered under the Securities Act.
“Rights” shall have the meaning set forth in the recitals hereof.
“Rights Offering” shall have the meaning set forth in the recitals hereof.
“Securities” shall have the meaning set forth in the recitals hereof.
“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder.
“Standby Offering” shall have the meaning set forth in the recitals hereof.
“Standby Purchaser” shall mean the Standby Purchaser named in the recitals hereof.
“Stock Offerings” shall have the meaning set forth in the recitals hereof.
“Subscription Agent” shall have the meaning set forth in Section 4(d) hereof.
“Subscription Price” shall have the meaning set forth in the recitals hereof.
“Subsidiaries” shall have the meaning set forth in Section 3(e) hereof.
“Superior Proposal” shall mean an unsolicited written, bona fide proposal that the Company’s Board
of Directors determines, in its good faith judgment (after consultation with the Company’s outside
legal counsel and investment bankers) (i) to be more favorable from a financial point of view to
the stockholders of the Company than the transactions contemplated by this Agreement, (ii) to be
reasonably likely to be completed, taking into account all legal, financial and regulatory aspects
of the proposal and (iii) that the Company’s Board of Directors, after consultation with its legal
counsel, determines in good faith that it must accept to comply with its fiduciary duties.
“Warrants” shall have the meaning set forth in the recitals hereof.
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“Warrant Shares” shall mean the shares of Common Stock issuable upon the Exercise of Warrants.
Section 2. Standby Purchase Commitment.
(a) Subject to the terms and conditions of this Agreement, the Standby Purchaser hereby agrees
to purchase the Securities from the Company, and the Company hereby agrees to sell the
Securities to the Standby Purchaser, at the Subscription Price.
(b) Payment of the Subscription Price for the Securities shall be made to the Company by the
Standby Purchaser, on the Closing Date, against delivery of the Securities to the Standby
Purchaser, in United States dollars by means of certified or cashier’s checks, bank drafts,
money orders or wire transfers.
Section 3. Representations and Warranties of the Company. The Company represents and
warrants to the Standby Purchaser as follows:
(a) The Company is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has all requisite corporate power and authority to carry
on its business as now conducted and to perform its obligations under this Agreement.
(b) This Agreement has been duly and validly authorized, executed and delivered by the Company
and constitutes a binding obligation of the Company enforceable against it in accordance with
its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(c) Once the Registration Statement is declared effective by the Commission, no stop order will
have been issued with respect thereto and no proceedings therefore will have been initiated or,
to the knowledge of the Company, threatened by the Commission, and any request on the part of
the Commission for additional information will have been complied with. On the effective date,
each of the Registration Statement and the Prospectus (and all documents and filings
incorporated by reference therein) will comply in all material respects with the requirements
of the Securities Act and the Exchange Act, to the extent applicable, and will not contain an
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. On the Closing Date, each
of the Registration Statement and the Prospectus (and all documents and filings incorporated
therein) will comply in all material respects with the requirements of the Securities Act and
the Exchange Act, to the extent applicable, and will not contain an untrue statement of a
material fact nor omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with the information furnished to the
Company in writing by the Standby Purchaser for use in the Registration Statement or in the
Prospectus.
(d) All of the Securities (including the Warrant Shares) and New Shares will have been duly
authorized for issuance prior to the Closing, and, when issued and distributed by the Company,
will be validly issued, fully paid and non-assessable; and none of the Securities (including
the Warrant Shares) or New Shares will have been issued in violation of the preemptive rights
of any security holders of the Company arising as a matter of law or under or pursuant to the
Company’s Certificate of Amendment to the Company’s Certificate of Incorporation, as amended
through the Closing Date (the “Certificate of Incorporation”) or Amended and Restated Bylaws,
in each case as currently in effect, or any material agreement or instrument to which the
Company is a party or by which it or its assets are bound.
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(e) Neither the Company nor any of its direct or indirect subsidiaries (“Subsidiaries”) is in
violation of its articles of incorporation, certificate of incorporation, articles of
organization, bylaws, operating agreement or other governing documents, or in default under any
agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party,
the effect of which violation or default would reasonably be expected to have a Material
Adverse Effect, and the execution, delivery and performance of this Agreement by the Company
and the consummation of the transactions contemplated hereby will not conflict with, or
constitute a breach of, or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the assets of the Company or its Subsidiaries pursuant to the
terms of any agreement, indenture or instrument to which the Company or any of its Subsidiaries
is a party, or result in a violation of the articles of incorporation, certificate of
incorporation, articles of organization, bylaws, operating agreement or other governing
documents of the Company or any of its Subsidiaries or any order, rule or regulation of any
court or governmental agency having jurisdiction over the Company, any of its Subsidiaries or
any of their property; and, except as contemplated herein, no consent, authorization or order
of, or filing or registration with, any court or governmental agency is required for the
execution, delivery and performance of this Agreement or the performance of the Company’s
obligations hereunder.
(f) The only approvals by the Company’s stockholders, if any, necessary to consummate the
transactions contemplated by this Agreement are as set forth in Section 7(a)(iv) hereof.
Section 4. Representations and Warranties of the Standby Purchaser. The Standby Purchaser
represents and warrants to the Company as follows:
(a) (i) If the Standby Purchaser is an individual, he or she has full power and authority to
perform his or her obligations under this Agreement.
(ii) If the Standby Purchaser is a corporation, the Standby Purchaser is a corporation duly
incorporated, validly existing and in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to perform its obligations under this
Agreement.
(iii) If the Standby Purchaser is a trust, the trustee has been duly appointed as trustee
of the Standby Purchaser with full power and authority to act on behalf of the Standby
Purchaser and to perform the obligations of the Standby Purchaser under this Agreement.
(iv) If the Standby Purchaser is a partnership or limited liability company, the Standby
Purchaser is a partnership or limited liability company duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization, with full power
and authority to perform its obligations under this Agreement.
(b) The Standby Purchaser is familiar with the business in which the Company is engaged, and
based upon knowledge and experience in financial and business matters, the Standby Purchaser is
familiar with the investments of the type being undertaken to purchase; the Standby Purchaser
is fully aware of the problems and risks involved in making an investment of this type; and the
Standby Purchaser is capable of evaluating the merits and risks of this investment. The Standby
Purchaser acknowledges that, prior to executing this Agreement, there was an opportunity to ask
questions of and receive answers or obtain additional information from a representative of the
Company concerning the financial and other affairs of the Company.
(c) This Agreement has been duly and validly authorized, executed and delivered by such Standby
Purchaser and constitutes a binding obligation of such Standby Purchaser enforceable against
the Standby Purchaser in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors’ rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
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(d) The Standby Purchaser hereby acknowledges that the Company has retained Paragon Capital
Group, LLC to serve as the Subscription Agent (the “Subscription Agent”) in connection with the
Rights Offering, pursuant to which the Agent will receive customary fees for each share of
Common Stock sold in the Stock Offerings.
Section 5. Deliveries at Closing.
(a) At the Closing, the Company shall deliver to the Standby Purchaser a certificate or
certificates representing the number of shares of Common Stock and Warrants issued to the
Standby Purchaser pursuant to Section 2 hereof.
(b) At the Closing, the Standby Purchaser shall deliver to the Company payment in an amount
equal to the Subscription Price multiplied by the number of shares of Common Stock purchased by
such Standby Purchaser, as set forth in Section 2(b) hereof, in immediately available United
States funds, to an account or accounts designated in writing by the Company; provided that
such payment shall constitute the Standby Purchaser’s agreement and acknowledgement that all of
the conditions specified in Section 7(a) and (c) hereof shall have been satisfied or waived by
the Standby Purchaser.
Section 6. Covenants.
(a) Covenants. The Company agrees and covenants with the Standby Purchaser, between the
date hereof and the earlier of the Closing Date or the effective date of any termination
pursuant to Section 8 hereof, as follows:
(i) To use commercially reasonable efforts to effectuate the Rights Offering;
(ii) As soon as reasonably practicable after the Company is advised or obtains knowledge
thereof, to advise the Standby Purchaser with a confirmation in writing, of (A) the time
when the Prospectus or any amendment or supplement thereto has been filed, (B) the
issuance by the Commission of any stop order, or of the initiation or threatening of any
proceeding, suspending the effectiveness of the Registration Statement or any amendment
thereto or any order preventing or suspending the use of any preliminary prospectus or
the Prospectus or any amendment or supplement thereto, (C) the issuance by any state
securities commission of any notice of any proceedings for the suspension of the
qualification of the New Shares, Warrants or Warrant Shares for offering or sale in any
jurisdiction or of the initiation, or the threatening, of any proceeding for such
purpose, (D) the receipt of any comments from the Commission directed toward the
Registration Statement or the Prospectus, or any document incorporated therein by
reference, and (E) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional information.
The Company will use its commercially reasonable efforts to prevent the issuance of any
such order or the imposition of any such suspension and, if any such order is issued or
suspension is imposed, to obtain the withdrawal thereof as promptly as possible;
(iii) To operate the Company’s business in the ordinary course of business consistent
with past practice, subject to compliance with and limitations required by the
outstanding cease-and-desist orders against the Company and the Bank;
(iv) To notify, or to cause the Subscription Agent to notify, on each Friday during the
exercise period of the Rights, or more frequently if reasonably requested by the Standby
Purchaser, the Standby Purchaser of the aggregate number of Rights known by the Company
or the Subscription Agent to have been exercised pursuant to the Rights Offering as of
the close of business on the preceding Business Day or the most recent practicable time
before such request, as the case may be;
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(v) Not to issue any shares of capital stock of the Company, or options, warrants,
purchase
rights, subscription rights, conversion rights, exchange rights, securities convertible
into or exchangeable for capital stock of the Company, or other agreements or rights to
purchase or otherwise acquire capital stock of the Company, except: (a) for shares of
Common Stock issuable upon exercise of the Company’s presently outstanding stock options;
(b) for Warrants issued as set forth in the recitals to this Agreement; or (c) in
connection with any redemption of the Company’s Fixed Rate Cumulative Perpetual Preferred
Stock Series A pursuant to Section 6(f) of this Agreement;
(vi) Not to authorize any stock split, stock dividend, stock combination or similar
transaction affecting the number of issued and outstanding shares of Common Stock, other
than a reverse stock split that may be undertaken subsequent to or contemporaneous with
closing of the transactions contemplated by this Agreement; and
(vii) Not to declare or pay any dividends on its Common Stock or repurchase any shares of
Common Stock, other than ordinary quarterly dividends, regularly declared and paid in
accordance with past practice.
(b) Certain Acquisitions. Between the date hereof and the Closing Date, the Standby
Purchaser and its respective Affiliates shall not acquire any shares of Common Stock; provided,
however, that the foregoing shall not restrict the acquisition of shares of Common Stock by the
Standby Purchaser or its Affiliates (i) from the Company pursuant to Section 2 of this
Agreement or (ii) from any other Standby Purchaser or any Affiliate of the Standby Purchaser or
of any other Standby Purchaser.
(c) Information. The Standby Purchaser agrees to furnish to the Company all information
with respect to the Standby Purchaser that the Company may reasonably request and any such
information furnished to the Company for inclusion in the Prospectus by the Standby Purchaser
shall not contain any untrue statement of material fact or omit to state a material fact
required to be stated in the Prospectus or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
(d) Public Statements. Neither the Company nor the Standby Purchaser shall issue any
public announcement, statement or other disclosure with respect to this Agreement or the
transactions contemplated hereby without the prior consent of the other party hereto, which
consent shall not be unreasonably withheld or delayed, except (i) if such public announcement,
statement or other disclosure is required by applicable law or applicable stock market
regulations, in which case the disclosing party shall consult in advance with respect to such
disclosure with the other parties to the extent reasonably practicable, (ii) with respect to
the filing by the Standby Purchaser of any Schedule 13D or Schedule 13G, to which a copy of
this Agreement may be attached as an exhibit thereto, or (iii) with respect to any application
to a Banking Regulator, to obtain any necessary approvals or authorizations to acquire the
Securities pursuant thereto.
(e) Regulatory Filing. If the Company or the Standby Purchaser determines a filing is
or may be required under applicable law in connection with the transactions contemplated
hereunder, the Company and the Standby Purchaser shall use commercially reasonable efforts to
promptly prepare and file all necessary documentation and to effect all applications that are
necessary or advisable under applicable law with respect to the transactions contemplated
hereunder so that any applicable waiting period shall have expired or been terminated as soon
as practicable after the date hereof.
(f) TARP Redemption. The Company shall use its best efforts to obtain the written
agreement of the U.S. Treasury to the redemption in full by the Company of all of the issued
and outstanding shares of the Company’s Fixed Rate Cumulative Perpetual Preferred Stock Series
A sold to the U.S. Treasury on December 5, 2008, at a discount to the stated redemption price.
(g) Lock Up. If the Standby Purchaser is a Designated Investor Director, the Standby
Purchaser will not sell, transfer or otherwise dispose of the Securities for a period of 180
days from the Closing Date.
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(h) Transaction Costs. If (i) this Agreement is terminated pursuant to Section 8(b)(i)
(if the Company is the breaching party), 8(b)(ii), 8(c) or 8(d) hereof; (ii) there is (A) a
Material Adverse Effect or (B) a Market Adverse Effect that is not cured within ten days after
the occurrence thereof (the “Cure Period”); (iii) the Closing occurs; or (iv) the Closing fails
to occur because any of the conditions to Closing set forth in Sections 7(a)(i), (ii), (iv),
(v), (vi), (vii), (viii), (ix), (x), (xi), (xii) or (xiii) or 7(c) are not satisfied, the
Company agrees to pay the aggregate sum of up to $80,000 to Xxxxxxx O’Dell (on behalf of all of
the Standby Purchasers approved by Xxxxxxx O’Dell) for reimbursement of actual fees, costs and
legal expenses incurred by such Standby Purchasers in connection with the transactions
contemplated hereby.
(i) Other Arrangements. The Company shall not after the date of this Agreement enter
into any agreement, including any Standby Purchase Agreement, with respect to its securities
which is inconsistent with or violates the rights granted to the Standby Purchaser in this
Agreement. Notwithstanding the foregoing, if the Company receives a Superior Proposal prior to
approval by the Company’s stockholders of the issuance of more than 20% of the Company’s
outstanding Common Stock to the Standby Purchasers, the Company may enter into an agreement,
terminate this Agreement or take any other action if, in the good faith opinion of the
Company’s Board of Directors, the failure to take any such action would be reasonably likely to
cause the Company’s Board of Directors to violate its fiduciary duties under applicable law.
Section 7. Conditions to Closing.
(a) The obligations of the Standby Purchaser to consummate the transactions contemplated
hereunder are subject to the fulfillment, prior to or on the Closing Date, of the following
conditions:
(i) The representations and warranties of the Company in Section 3 shall be true and
correct in all material respects as of the date hereof and at and as of the Closing Date
as if made on such date (except for representations and warranties (A) made as of a
specified date, which shall be true and correct in all material respects as of such
specified date or (B) qualified as to materiality, which shall be true and correct in all
respects, subject to such qualifications);
(ii) Subsequent to the execution and delivery of this Agreement and prior to the Closing
Date, there shall not have been any Material Adverse Effect, nor shall there have
occurred any breach of any covenant of the Company set forth in Section 6 hereof;
(iii) As of the Closing Date, trading in the Common Stock shall not have been
suspended by the Commission or NASDAQ or trading in securities generally on NASDAQ shall
not have been suspended or limited or minimum prices for securities generally shall not
have been established on the NASDAQ (a “Market Adverse Effect”);
(iv) The Company shall have received shareholder approval of (A) the sale to the Standby
Purchasers and (B) an amendment to the Company’s Certificate of Amendment to the
Certificate of Incorporation to increase the number of shares of authorized Common Stock
to authorize sufficient shares of Common Stock for completion of the Stock Offerings as
contemplated by this Agreement, and such amendment shall have been duly filed, and become
effective;
(v) The Company shall have obtained any (A) required federal, state and regulatory
approvals for the Stock Offerings on conditions reasonably satisfactory to the Designated
Investor Directors, including, without limitation, approvals of Banking Regulators, if
any, and (B) any stockholder approvals or other approvals required under applicable law
or NASDAQ rules;
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(vi) On or before the Closing Date, the Company shall cause the Board of Directors of the
Company to take the following actions, subject to the approval of applicable Banking
Regulators:
| A. | In accordance with Article SIXTH of the Certificate of Incorporation, (i) increase the number of members of the Board of Directors from five to ten and (ii) name Xxxxxxx O’Dell, Xxxx Xxxxx, Xxxxxx X. Xxxxxxxx and two individuals designated by Xxxxxxx O’Dell (the “Designated Investor Directors”) to fill the vacancies created by the increase in the number of directors, with the five new members being assigned to the classes of directors whose terms expire in the following years: |
Xxxxx X. Xxxxxxxxxx, XX: |
2012 | |||
Xxxxx Xxxxxxxx: |
2012 | |||
Xxxxxx X. Xxxxxxxx: |
2013 | |||
Xxxxxxx O’Dell: |
2014 | |||
Xxxx X. Xxxxx: |
2014 |
| B. | Obtain and accept the resignation of Xxxxx X. Xxxxxxx as Chairman of the Board of Directors of the Company and elect Xxxxxx X. Xxxxxxxx to serve in such capacity; |
| C. | Obtain and accept the resignation of Xxxxxx X. Xxxxxx as Chief Executive Officer of the Company and elect Xxxxxxx O’Dell to serve in such capacity; and |
| D. | Obtain and accept the resignation of Xxxxxxx X. Xxxxxxx as President of the Company and elect Xxxx Xxxxx to serve in such capacity; |
(vii) Before the date on which the members of the Board of Directors take the action in
accordance with subparagraph (vi), the Company and the members of the Board of Directors
shall enter into a mutually acceptable agreement with Xxxxxxx O’Dell, Xxxx Xxxxx and
Xxxxxx X. Xxxxxxxx which provides for (a) the renomination of the Designated Investor
Directors for election to the Board of Directors of the Company for at least one
three-year term upon the expiration of each such Designated Investor Director’s initial
term, unless any such Designated Investor Director gives notice to the Company that he
does not seek such renomination and (b) subject to any limitation imposed by law or by
any Banking Regulator, in the event that any Designated Investor Director is unable to
serve as a director, whether because of resignation, removal or otherwise, the
designation by the Designated Investor Directors of a substitute nominee who is
reasonably acceptable to the Company’s Board of Directors, and the appointment of such
nominee to the Board to complete such Designated Investor Director’s term as a director;
(viii) The aggregate Tier I Capital of the Bank (as defined by applicable Banking
Regulators), after the inclusion of the net proceeds from the Stock Offerings contributed
by the Company to the Bank and the redemption by the Company of its Fixed Rate Cumulative
Perpetual Preferred Stock Series A, shall equal or exceed 8.0% of Total Assets (as
defined by Banking Regulators);
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(ix) The Company must have received net proceeds of at least $16.5 million from the
Rights Offering and the Public Reoffer, if any (excluding any and all proceeds from the
sale of the Securities to the Standby Purchasers); provided, however, that if the U.S.
Treasury has agreed in writing prior to the Closing to permit the Company to redeem the
outstanding shares of Fixed Rate Cumulative Perpetual Preferred Stock Series A at a
discount to their stated redemption price, this condition shall be satisfied by the
Company’s receipt of net proceeds from the Rights Offering and the Public Reoffer, if any
(excluding any and all proceeds from the sale of the Securities to the Standby Purchaser)
in the amount of $16.5 million less the amount of such discount;
(x) The approval or non-objection of the Banking Regulators of any applications or other
filings submitted by the Designated Investor Directors contemplated by this Agreement
without the imposition of any condition which the Designated Investor Directors
reasonably determine would be unduly burdensome. Without limiting the generality of the
foregoing sentence, a condition to the approval of one or more change of control
applications which requires the submission of financial or other information by Persons
other than the Designated Investor Directors shall be deemed to be unduly burdensome;
(xi) The applicable Banking Regulator shall have informed the Company and the Standby
Purchaser in writing that the following provisions of the cease-and-desist order
outstanding against the Bank (Order No. CN-11-14) shall not be effective as of and after
the Closing: Paragraph 9 (respecting the submission of a Contingency Plan); Paragraph 12
(the prohibition on non-homogeneous lending); Paragraph 14 (limitations on the release of
borrowers and guarantors); Paragraph 21 (concerning a management succession plan);
Paragraph 33 (limiting asset growth); Paragraph 24(b) (to remove the requirement of
maintaining sufficient short-term liquidity at a level consistent with both short- and
long-term liquidity objectives); Paragraph 38 (limits on accepting brokered deposits);
and Paragraph 39 (imposing limits on dividends and other capital distributions by the
Bank);
(xii) The applicable Banking Regulator shall have informed the Company and the Standby
Purchaser in writing that the following provisions of the cease-and-desist order
outstanding against the Company (Order No. CN 11-15) shall not be effective as of and
after the Closing: Paragraph 8 (imposing limits on dividends or other capital
distributions by the Company); and Paragraph 9 (imposing limits on the Company incurring
new debt or making changes in or payments on existing debt); and
(xiii) On the Closing Date, subject to the approval of any and all applicable Banking
Regulators, Xxxxxxx O’Dell shall receive $90,000 from the Company on behalf of himself,
Xxxx Xxxxx and Xxxxxx Xxxxxxxx in consideration of the efforts of such individuals in
connection with the Standby Purchase Agreement.
(b) The obligations of the Company to consummate the transactions contemplated hereunder are
subject to the fulfillment, prior to or on the Closing Date, of the following conditions:
(i) The representations and warranties of the Standby Purchaser in Section 4 shall be
true and correct in all material respects as of the date hereof and at and as of the
Closing Date as if made as of such date (except for representations and warranties made
as of a specified date, which shall be true and correct in all material respects as of
such specified date); and
(ii) If the Standby Purchaser is a Designated Investor Director, he or she shall have
executed and delivered a lock-up agreement substantially in the form of Exhibit A
hereto.
(c) The obligations of the Company and the Standby Purchaser to consummate the transactions
contemplated hereunder in connection with the Rights Offering are subject to the fulfillment,
prior to or on the Closing Date, of the following conditions:
(i) No judgment, injunction, decree or other legal restraint shall prohibit, or have the
effect of rendering unachievable, the consummation of the Stock Offerings or the material
transactions contemplated by this Agreement;
10
(ii) No stop order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or otherwise shall have
been complied with;
(iii) The New Shares (including the Warrant Shares) shall have been authorized for
listing on the NASDAQ; and
(iv) Any applicable waiting period shall have expired or been terminated thereunder with
respect to such purchase.
(d) Any of the conditions set forth in Sections 7(a) or 7(c) to the obligation of the Standby
Purchaser to consummate the transactions contemplated herein may be waived in writing by
Xxxxxxx O’Dell, in his discretion, on behalf of all Standby Purchasers, and the Standby
Purchaser agrees that any such waiver shall be binding upon the Standby Purchaser.
Section 8. Termination.
(a) This Agreement may be terminated at any time prior to the Closing Date by the Standby
Purchaser by written notice to the Company if (i) there is (A) a Material Adverse Effect or (B)
a Market Adverse Effect that is not cured within the Cure Period, (ii) any condition to closing
specified in Section 7(a) or 7(c) cannot be satisfied or the Standby Purchaser reasonably
believes that any such condition cannot be satisfied or (iii) any purchaser in the Stock
Offerings, including any associates or group acting in concert, (excluding any Standby
Purchaser approved by Xxxxxxx O’Dell) would own more than 9.9% of the Company’s outstanding
Common Stock immediately following completion of the Stock Offerings. In the case of XxxXxxxx
Xxxxxx Investment Management Inc. only, the 9.9% limitation in the foregoing Section 8(a)(iii)
shall be increased to 15%.
(b) This Agreement may be terminated by the Company on one hand or by the Standby Purchaser on
the other hand, by written notice to the other party hereto:
(i) At any time prior to the Closing Date, if there is a material breach of this
Agreement by the other party that is not cured within seven days after the non-breaching
party has delivered written notice to the breaching party of such breach;
(ii) At any time after January 31, 2012, if the Closing has not occurred prior to such
date, provided that the action or inaction of the party seeking to terminate did not
result in the failure of Closing to occur by January 31, 2012; or if
(iii) Consummation of the Standby Offering is prohibited by law, rule or regulation.
(c) This Agreement may be terminated by the Company in the event that the Company determines
that it is not in the best interests of the Company and its shareholders to go forward with the
Stock Offerings.
(d) This Agreement may be terminated by the Company in the event that, prior to approval by
the Company’s stockholders of the issuance of more than 20% of the Company’s outstanding common
stock to the Standby Purchasers, the Company shall have received a Superior Proposal and, in
the good faith opinion of the Company’s Board of Directors, the failure to terminate this
Agreement would be reasonably likely to cause the Company’s Board of Directors to violate its
fiduciary duties under applicable law. If the Company terminates this Agreement pursuant to
this Section 8(d), the Company shall pay to Xxxxxxx O’Dell (on behalf of all of the Standby
Purchasers approved by Xxxxxxx O’Dell)
the sum of $150,000, in cash, within three days of such termination.
11
Section 9. Survival. The representations and warranties of the Company and the Standby
Purchaser contained in this Agreement or in any certificate delivered hereunder shall survive the
Closing hereunder.
Section 10. Notices. All notices, communications and deliveries required or permitted by
this Agreement shall be made in writing signed by the party making the same, shall specify the
Section of this Agreement pursuant to which it is given or being made and shall be deemed given or
made (a) on the date delivered if delivered by telecopy or in person, (b) on the third (3rd)
Business Day after it is mailed if mailed by registered or certified mail (return receipt
requested) (with postage and other fees prepaid) or (c) on the day after it is delivered, prepaid,
to an overnight express delivery service that confirms to the sender delivery on such day, as
follows:
Attention: Xxxxxx X. Xxxxxx, Esq.
Chief Executive Officer
Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Silver, Xxxxxxxx & Taff, L.L.P.
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx, P.C.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Silver, Xxxxxxxx & Taff, L.L.P.
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx, P.C.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Standby Purchaser:
Attention:
Telephone:
Facsimile:
Attention:
Telephone:
Facsimile:
With a copy to:
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
00 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
00 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other representative or at such other address of a party as such party hereto may
furnish to the other parties in writing in accordance with this Section 10.
Section 11. Assignment. This Agreement will be binding upon, and will inure to the benefit
of and be enforceable by, the parties hereto and their respective successors and assigns, including
any Person to whom Securities are transferred in accordance herewith.
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Section 12. Entire Agreement. Except as specifically set forth herein, the Company and the
Standby Purchaser mutually agree to be bound by the terms of the non-disclosure agreement dated
January 16, 2011 (the “Non-Disclosure Agreement”) previously executed by the Company and the
Standby Purchaser,
which Non-Disclosure Agreement is hereby incorporated herein by reference, and all information
furnished by either party to the other party or its representatives pursuant hereto shall be
subject to, and the parties shall hold such information in confidence in accordance with, the
provisions of the Non-Disclosure Agreement. The Company and the Standby Purchaser agree that such
Non-Disclosure Agreement shall continue in accordance with their respective terms, notwithstanding
the termination of this Agreement. The Non-Disclosure Agreement and this Agreement embody the
entire agreement and understanding between the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties, or undertakings, other than
those set forth or referred to herein or in the Non-Disclosure Agreement, with respect to the
standby purchase commitments with respect to the Securities and the New Shares. Other than with
respect to matters set forth or referred to in the Non-Disclosure Agreement, this Agreement
supersedes all prior agreements and understandings between the parties with respect to the subject
matter of this Agreement.
Section 13. Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Ohio (other than its rules of conflict of laws to the extent
the application of the laws of another jurisdiction would be required thereby) and Federal law as
it applies to depository institutions and their holding companies.
Section 14. Severability. If any provision of this Agreement or the application thereof to
any Person or circumstances is determined by a court of competent jurisdiction to be invalid, void
or unenforceable, the remaining provisions hereof, or the application of such provision to Persons
or circumstances other than those as to which it has been held invalid, void or unenforceable,
shall remain in full force and effect and shall in no way be affected, impaired or invalidated
thereby, so long as the economic or legal substance of the transactions contemplated hereby is not
affected in any manner adverse to any party. Upon such determination, the parties shall negotiate
in good faith in an effort to agree upon a suitable and equitable substitute provision to affect
the original intent of the parties.
Section 15. Extension or Modification of Rights Offering. The Company may (a) waive
irregularities in the manner of exercise of the Rights, and (b) waive conditions relating to the
method (but not the timing) of the exercise of the Rights, in each case only to the extent that
such waiver does not materially adversely affect the interests of the Standby Purchaser.
Section 16. Miscellaneous.
(a) The headings in this Agreement are for purposes of reference only and shall not limit or
otherwise affect the meaning of this Agreement.
(b) This Agreement may be executed in any number of counterparts and by facsimile or
electronic transmission (including by pdf), each of which shall be deemed to be an original,
but all of which, when taken together, shall constitute one and the same instrument.
[Remainder of this page intentionally left blank.]
13
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of
the date first above written.
| COMPANY CENTRAL FEDERAL CORPORATION |
||||
| BY: | ||||
| Name: | Xxxxxx X. Xxxxxx, Esq. | |||
| Title: | Chief Executive Officer | |||
| STANDBY PURCHASER |
||||
| BY: | ||||
| Name: | ||||
| Title: | ||||
14
Exhibit A
Ladies and Gentlemen:
The undersigned, Central Federal Corporation, a Delaware corporation (the “Company”), the
Company’s executive officers and directors, and , (the “Standby Purchaser”),
understand that Paragon Capital Group, LLC (“Paragon”) proposes to enter into an agency agreement
with the Company (the “Agency Agreement”) in connection with the Stock Offering (as defined below).
The Company is distributing, at no charge, subscription rights to purchase shares of common stock
of the Company (“Common Stock”) to the holders of record of its Common Stock (a “Shareholder”) at
5:00 p.m. Eastern Time, on [ ], 2011 (the “Record Date”) and, subject to the rights of such
holders described below, to certain other purchasers on a standby basis. Each Record Date
Shareholder will receive one non-transferable subscription right (a “Right”) for every share of
Common Stock held of record at the close of business on the Record Date. Each Right will entitle
the holder thereof to subscribe for a certain number of shares of Common Stock (the “Underlying
Shares”) at $1.00 per share (the “Subscription Price”) (the “Basic Subscription Privilege”). Each
Record Date Shareholder who exercises in full its Basic Subscription Privilege will also be
eligible to subscribe at the Subscription Price for shares of Common Stock not otherwise purchased
pursuant to the exercise of the Basic Subscription Privilege up to the total number of Underlying
Shares, subject to availability, proration and reduction by the Company in certain circumstances
and, in all instances, to a limit on ownership of the Common Stock (the “Over-Subscription
Privilege”). The offer and sale of the Underlying Shares pursuant to the exercise of the Basic
Subscription Privilege and the Over-Subscription Privilege are referred to herein as the “Rights
Offering.” For each four shares of Common Stock subscribed for, purchasers will receive, without
charge, one warrant to purchase one additional share of Common Stock at a purchase price of $1.00
per share (the “Warrant”). The Warrant will be exercisable for three years upon payment of the
purchase price in cash, and will be non-transferable.
The Company has separately entered into a “Standby Purchase Agreement” with the Standby
Purchaser, pursuant to which the Standby Purchaser has agreed to acquire from the Company, at the
Subscription Price, [ ] shares of Common Stock, assuming completion of the
Rights Offering and the satisfaction of the other terms and conditions contained in the Standby
Purchase Agreement. The Standby Purchaser has conditioned its purchase of shares of Common Stock
upon the receipt by the Company of $16.5 million in net proceeds from the Rights Offering and the
Public Reoffer (as defined below), if any (excluding any and all proceeds from the sale of the
Securities (as defined below) to the Standby Purchasers). This condition may be waived at the
discretion of Xxxxxxx O’Dell on behalf of the Standby Purchaser.
The Company may offer any shares of Common Stock that remain unsubscribed in the Rights
Offering at the expiration of the Rights Offering to the public at the Subscription Price per share
(the “Public Reoffer”). Any offering of shares of Common Stock in the Public Reoffer shall be on a
best efforts basis. The Public Reoffer shall terminate no later than January 31, 2012. The Rights
Offering, the offering to the Standby Purchaser and any Other Standby Purchaser, and the Public
Reoffer are together referred to herein as the “Stock Offering,” and the Underlying Shares and the
shares of Common Stock sold to the Standby Purchaser, to any Other Standby Purchaser and to the
public in the Public Reoffer are collectively referred to herein as the “Securities.” The maximum
number of shares of Common Stock that may be sold in the Stock Offering is 30 million.
15
In recognition of the benefit that the Stock Offering will confer upon the undersigned, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned hereby agrees that from the date hereof and until 180 days after the
consummation of all sales of Common Stock in the Stock Offering (such 180 day period being referred
to herein as the “Lock-Up Period”), the undersigned will not offer, sell, contract to sell
(including any short sale), pledge,
hypothecate, establish an open “put equivalent position” within the meaning of Rule 16a-1(h)
under the Securities Exchange Act of 1934, as amended, grant any option, right or warrant for the
sale of, purchase any option or contract to sell, sell any option or contract to purchase, or
otherwise encumber, dispose of or transfer, or grant any rights with respect to, directly or
indirectly, any shares of Common Stock or securities convertible into or exchangeable or
exercisable for any shares of Common Stock, enter into a transaction which would have the same
effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any
of the economic consequences of ownership of the Common Stock, whether any such aforementioned
transaction is to be settled by delivery of the Common Stock or such other securities, in cash or
otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition,
or to enter into any such transaction, swap, hedge or other arrangement, without, in each case, the
prior written consent of Paragon, which consent may be withheld in Paragon’s sole discretion.
Any Common Stock or Warrants acquired by the undersigned in the open market on or after the
closing of the Stock Offering will not be subject to this letter. A transfer of Common Stock or
Warrants to a family member or a trust, partnership or other entity for the benefit of the
undersigned, a transfer not involving a disposition for value, a bona fide gift, or a transfer to
an investment vehicle under common control with the undersigned may be made, provided the
transferee agrees in writing prior to such transfer to be bound by the terms of this letter as if
it were a party hereto.
In furtherance of the foregoing, the Company and its transfer agent and registrar are hereby
authorized to (a) decline to make any transfer of shares of Common Stock or Warrants if such
transfer would constitute a violation or breach of this letter and (b) place legends and stop
transfer instructions on any such shares of Common Stock or Warrants owned or beneficially owned by
the undersigned, which legends and stop transfer instructions shall be removed upon expiration of
the Lock-Up Period.
The undersigned represents and warrants that the undersigned has full power and authority to
enter into this letter. This letter is irrevocable and shall be binding on the undersigned and the
successors, heirs, personal representatives and assigns of the undersigned. This letter shall be
governed by and construed in accordance with the laws of the State of Ohio without regard to choice
of law rules. This letter shall lapse and become null and void if the Rights Offering is abandoned
by the Company, if the Standby Purchase Agreement is terminated or if the Stock Offering shall not
have occurred on or before January 31, 2012.
| Very truly yours, STANDBY PURCHASER |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Date: | ||||
16
