EXHIBIT 1. UNDERWRITING AGREEMENT WITH COMMUNITY BANC INVESTMENTS, INC.
[ON THE LETTERHEAD OF OHIO STATE BANCSHARES, INC.]
June 25, 2002
Community Banc Investments, Inc.
00 Xxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxx 00000
Attn: Xx. Xxxxx X. XxXxxxxx, President
Re: Underwriting of Ohio State Bancshares, Inc. Common Shares
(the "Common Shares")
Dear Xx. XxXxxxxx:
This letter confirms our agreement to retain Community Banc
Investments, Inc., a licensed securities dealer in Ohio ("Community Banc") to
serve as underwriter, on a best efforts basis, of up to a maximum of 44,000
Common Shares of Ohio State Bancshares, Inc. ("Ohio State Bancshares"), subject
to the terms, provisions, and conditions of this Agreement and in accordance
with the prices, terms, provisions and conditions set forth in the Prospectus
(the "Prospectus"). The community offering described in the Prospectus shall
hereinafter be referred to as the "Community Offering." The rights offering as
described in the Prospectus, together with the Community Offering, are hereafter
collectively referred to as the "Offering."
1. REPRESENTATIONS AND WARRANTIES OF OHIO STATE BANCSHARES.
Ohio State Bancshares represents and warrants to Community Banc that:
(a) Ohio State Bancshares is a corporation duly organized and
existing in good standing under the laws of the State of Ohio with
corporate power and authority to own its property and to carry on its
business;
(b) The Offering is being made in accordance with the General
Corporation Law of the State of Ohio, and will be fully registered
under the Securities Act of 1933, as amended (the "Act"). The Offering
will qualify for sale in each state in which Ohio State Bancshares has
shareholders under each state's respective "blue sky" laws;
(c) Ohio State Bancshares has full corporate power and authority
to sign this Agreement and undertake the Offering as contemplated, and
no approvals or consents, except as may be required under the Act and
state securities laws is required for the consummation of the Offering
and any transactions contemplated thereby; and
(d) The Prospectus, any exhibits, schedules or attachments
thereto, or any written statement furnished to prospective investors
by Ohio State Bancshares in connection with the Offering, does not and
will not contain any untrue statement of a material fact or omit to
state any material fact necessary to make any statement therein not
misleading. There is no fact which Ohio State Bancshares has not
disclosed to Community Banc or any prospective investor in writing
which materially affects adversely nor, so far as Ohio State
Bancshares can now foresee, will materially affect adversely the
business, prospects, properties, profits, or condition (financial or
otherwise) of Ohio State Bancshares.
2. REPRESENTATIONS AND WARRANTIES OF COMMUNITY BANC.
Community Banc hereby represents and warrants to Ohio State Bancshares
that:
(a) Community Banc is a licensed securities dealer in the State
of Ohio, which is the only state in which Community Banc will offer
and sell the Common Shares on behalf of Ohio State Bancshares in the
Offering, and Community Banc shall remain duly licensed in Ohio
throughout the term of the offer and sale of the Common Shares and
shall comply with all statutes and other requirements applicable to it
as a licensed securities dealer;
(b) Community Banc will act in its capacity as an underwriter of
the Common Shares only in accordance with the terms and conditions set
forth herein and in the Prospectus; and
(c) Community Banc has full corporate power and authority to sign
this Agreement and to undertake the underwriting of the Community
Offering as contemplated.
3. SERVICES AND FEE.
Community Banc agrees to use its best efforts to sell the Common Shares
in the Community Offering in Ohio at the prices and on the terms
described in the Prospectus. Community Banc shall have no obligation to
purchase any of the shares.
As consideration for Community Banc's services hereunder, Ohio State
Bancshares, Inc. shall pay Community Banc as follows: (a) Three Dollars
($3.00) for each Common Share sold by Community Banc in Ohio in the
Community Offering to members of the general public at $69.00 per
share, and (b) Two Dollars ($2.00) for each Common Share sold by
Community Banc in Ohio in the Community Offering to existing
shareholders at $68.00 per share. Ohio State Bancshares shall not
compensate Community Banc for any Common Shares sold in the rights
offering (as described in the Prospectus) or to employees of Ohio State
Bancshares or The Xxxxxx Bank in the Community Offering. In no event
will Community Banc's commission exceed 3% of the total proceeds of the
Offering.
4. COVENANTS OF OHIO STATE BANCSHARES.
If any event shall have occurred as a result of which the
Prospectus (including any exhibits, schedules or attachments thereto)
or any other written materials previously furnished to prospective
investors would include any untrue statement of a material fact, or
omit to state a material fact necessary in order to make the
statements therein not misleading, Ohio State Bancshares shall notify
Community Banc and, upon Community Banc's request, shall prepare and
furnish Community Banc with a supplement or amendment to the
Prospectus or other written materials, as applicable, which will
correct such statement or omission as Community Banc may from time to
time reasonably request.
5. INDEMNIFICATION.
(a) Ohio State Bancshares shall indemnify and hold harmless
Community Banc, and each of its controlling persons within the meaning
of the Act, against any and all losses, claims, damages, liabilities,
costs and expenses (including attorneys' and experts' fees) to which
Community Banc or any such controlling person may become subject,
insofar as such losses, claims, damages, liabilities, costs and
expenses (including attorneys' and experts' fees), or actions in
respect thereof, arise out of or are based upon any actions in
connection with the Offering by Ohio State Bancshares or its agents
(other than actions by Community Banc, controlling persons, its
employees or affiliates), employees or affiliates, which are alleged
to be in violation of the Act, or any other applicable federal or
state securities law or regulation or the terms and conditions of the
Offering set forth in the Prospectus.
(b) Community Banc shall indemnify and hold harmless Ohio State
Bancshares and each of its controlling persons within the meaning of
the Act, against any and all losses, claims, damages, liabilities,
costs and expenses (including attorneys' and experts' fees) to which
Ohio State Bancshares or any such controlling person may become
subject, insofar as such losses, claims, damages, liabilities, costs
and expenses (including attorneys' and experts' fees), or actions in
respect thereof, arise out of or are based upon the activities of
Community Banc as underwriter in the offering of the Common Shares,
which are alleged to be in violation of the Act or any other
applicable federal or state securities law or regulation, or the terms
and conditions of the Offering set forth in the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against any indemnifying party under the Section 5, notify the
indemnifying party of the commencement thereof; but the omission to so
notify the indemnifying party shall not relieve it from any liability
under the Section 5. In the event any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, assume the defense
thereof, with counsel who shall be to the reasonable satisfaction of
such indemnified party, and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such
indemnified party under this Section 5 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
6. REPRESENTATIONS AND INDEMNITIES TO SURVIVE THE OFFERING.
The respective indemnities, agreements, representations,
warranties, covenants and other statements of Ohio State Bancshares
and Community Banc set forth in or made pursuant to this Agreement
shall remain in full force and effect, regardless of any investigation
made by or on behalf of Ohio State Bancshares or Community Banc, or
any controlling person of either, and shall survive the completion of
the Offering.
7. SUCCESSORS.
This Agreement shall be binding upon and inure solely to the
benefit of Ohio State Bancshares and Community Banc and to the extent
provided in Section 5, any person who controls Ohio State Bancshares
or Community Banc, or their respective successors and assigns, and no
other person shall acquire or have any right under or by virtue of the
Agreement. No purchaser of any of the Common Shares shall be construed
to be a successor or assign merely by reason of such purchase.
8. APPLICABLE LAW.
This Agreement shall be construed and enforced in accordance with
the laws of the State of Ohio and, to the extent that it may involve
any United States statute, with the laws of the United States.
9. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the
parties and no amendment, change, modification or alteration of this
Agreement shall be valid unless it is in writing and signed by the
parties hereto.
10. ORIGINAL DOCUMENT.
This Agreement may be executed by both parties in counterparts,
each of which shall be deemed an original, but all of such
counterparts taken together shall constitute one and the same
Agreement.
If this letter accurately sets forth the understanding between us,
please sign the enclosed copy of this letter below and return the signed copy to
Ohio State Bancshares at which time this letter will become a mutually binding
obligation.
Very truly yours,
Ohio State Bancshares, Inc.
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------------
Its President and Chief Executive Officer
Agreed to as of the above date
Community Banc Investments, Inc.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Xxxxx X. XxXxxxxx
President
