The Merger Agreement contains customary representations and warranties from both FDEF and
UCFC, and each party has agreed to customary covenants, including covenants relating to: (i) the conduct of FDEFs and UCFCs businesses during the interim period between the execution of the Merger Agreement and the Effective Time;
(ii) the obligation of FDEF to call a meeting of its shareholders to adopt the Merger Agreement and, subject to certain exceptions, to recommend that its shareholders adopt the Merger Agreement and the transactions contemplated thereby, and to
approve certain amendments to FDEFs code of regulations in connection with the Merger; (iii) the obligation of UCFC to call a meeting of its shareholders to adopt the Merger Agreement and, subject to certain exceptions, to recommend that
its shareholders adopt the Merger Agreement and the transactions contemplated thereby; and (iv) each of FDEFs and UCFCs non-solicitation obligations relating to alternative acquisition
proposals.
The completion of the Merger is subject to customary conditions, including: (i) adoption by each of FDEFs
shareholders and UCFCs shareholders of the Merger Agreement and approval by FDEFs shareholders of the amendments to FDEFs code of regulations in connection with the Merger; (ii) the receipt of required regulatory approvals,
including the approval of the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation and the Ohio Division of Financial Institutions, without such approvals having resulted in the imposition of a materially
burdensome regulatory condition; (iii) effectiveness of the registration statement on Form S-4 relating to the shares of FDEF Common Stock to be issued in the Merger; (iv) approval for listing on the
Nasdaq Global Select Market, subject to official notice of issuance, of the shares of FDEF Common Stock to be issued in the Merger; and (v) the absence of any order, injunction or decree or other legal restraint preventing the consummation of
the Merger or making the consummation of the Merger illegal.
Under the Merger Agreement, each partys obligation to complete the
Merger is also subject to certain additional customary conditions, including: (i) subject to certain exceptions, the accuracy of the representations and warranties of the other party, generally subject to a material adverse effect
qualification; (ii) the performance in all material respects by the other party of its covenants and obligations under the Merger Agreement; (iii) the absence of a material adverse effect with respect to the other party since the execution
of the Merger Agreement; and (iv) the receipt by such party of an opinion from its counsel to the effect that the Merger will qualify as a reorganization for U.S. federal income tax purposes.
The Merger Agreement provides certain termination rights for both UCFC and FDEF and further provides that a termination fee of $18,400,000
will be payable by FDEF or UCFC upon termination of the Merger Agreement under certain customary circumstances.
The Merger is expected to
close in the first quarter of 2020.
The foregoing description of the Merger Agreement does not purport to be complete and is qualified in
its entirety by reference to the full text of the Merger Agreement, which is attached to this Current Report on Form 8-K (this Report) as Exhibit 2.1 and is incorporated into this Report by
reference. The representations, warranties and covenants of each party set forth in the Merger Agreement have been made only for purposes of, and were and are solely for the benefit of the parties to, the Merger Agreement, may be subject to
limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as
facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Accordingly, the representations and warranties may not describe the actual state of affairs at the date they
were made or at any other time, and investors should not rely on them as statements of fact. In addition, such representations and warranties will not survive consummation of the Merger, unless otherwise specified therein, and were made only as
of the date of the Merger Agreement or such other date as is specified in the Merger Agreement. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which
subsequent information may or may not be fully reflected in the parties public disclosures. Accordingly, the Merger Agreement is included with this Report only to provide investors with information regarding the terms of the Merger Agreement,
and not to provide investors with any other factual information regarding UCFC or FDEF, their respective affiliates or their respective businesses.
The Merger Agreement should not be read alone, but should instead be read in conjunction with the other information regarding UCFC, FDEF,
their respective affiliates and their respective businesses and the information regarding the Merger Agreement and the Merger that will be contained in, or incorporated by reference into, the registration statement on Form S-4 of FDEF that will include a joint proxy statement of UCFC and FDEF and a prospectus of FDEF and that will be filed with the U.S. Securities and Exchange Commission (the SEC).
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