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BANCFIRST OHIO CORP.
_________COMMON SHARES(1)
UNDERWRITING AGREEMENT
_______, 1996
McDONALD & COMPANY SECURITIES, INC.
as Representative of the Several Underwriters
Suite 2100
800 Superior Avenue
Cleveland, Ohio 44114-2603
Ladies and Gentlemen:
BancFirst Ohio Corp. (the "Company"), an Ohio corporation, hereby
confirms its agreement with you as follows:
1. Underwriters and Representative. The term "Underwriters," as used
herein, will mean and refer collectively to you and the other Underwriters named
in Schedule A annexed hereto, and the term "Representative" will refer to you in
your capacity as the representative of the Underwriters for the offering of the
common shares referred to herein. Except as may be expressly set forth below,
any reference to you in this Agreement shall be solely in your capacity as the
Representative.
2. Shares Offered. The Company proposes to issue and sell to the
Underwriters an aggregate of ____________ shares of its authorized and unissued
common shares, $10.00 par value per share (the "Firm Shares"). In addition, the
Company proposes to grant to the Underwriters an Option (as hereinafter defined)
to purchase up to an additional ________ shares (the "Option Shares") of its
authorized and unissued common shares on the terms and for the purposes set
forth in Section 4(b) hereof. The Firm Shares and the Option Shares are
hereinafter
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1 Includes an option to purchase from the Company up to __________
additional shares, solely to cover over-allotments.
2
sometimes together called the "Shares," and the Shares are more
fully described in the Registration Statement and Prospectus (as hereinafter
defined).
3. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriters that:
(a) The Company has prepared a Registration Statement on Form
S-3 (File No. 33-_______) relating to the Shares, including a
Preliminary Prospectus (as hereinafter defined), in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and
the rules, regulations and instructions (the "Rules and Regulations")
of the Securities and Exchange Commission (the "Commission") thereunder
and has filed such Registration Statement with the Commission. The
Company complies with the conditions for the use of Form S-3. One or
more amendments to such Registration Statement, including, in each
case, a revised Preliminary Prospectus, have been so prepared and
filed. If such Registration Statement has not become effective as of
the execution and delivery of this Agreement, and the filing of a
further amendment (the "Final Amendment") to such Registration
Statement is necessary to permit such Registration Statement to become
effective, such amendment will be filed promptly by the Company with
the Commission. If such Registration Statement has become effective and
any post-effective amendment has been filed with the Commission prior
to the execution and delivery of this Agreement, the most recent
post-effective amendment has been declared effective by the Commission.
If such Registration Statement has become effective and the Prospectus
included as part of the Registration Statement at the time it became
effective omitted information permitted to be omitted by Rule 430A of
the Rules and Regulations ("Rule 430A Information"), a final Prospectus
(the "Rule 430A Prospectus") containing all required Rule 430A
Information will promptly be filed by the Company pursuant to Rule
424(b) of the Rules and Regulations.
The term "Preliminary Prospectus" as used herein means any
form of prospectus (as referred to in Rule 430 of the Rules and
Regulations) with respect to the Shares included, at any time, as part
of such Registration Statement or filed with the Commission, pursuant
to Rule 424(a) of the Rules and Regulations, prior to such Registration
Statement being declared effective. The Registration Statement referred
to in this Section 3(a), as amended at the time that it becomes or
became effective, or, if applicable, as amended at the time the most
recent post-effective amendment to such Registration Statement filed
with the Commission prior to the execution and delivery of this
Agreement became effective, including financial statements and all
exhibits and other information (whether filed or incorporated by
reference) deemed to be part thereof at such time pursuant to Rule 430A
of the Rules and Regulations is herein called the "Registration
Statement." The final Prospectus relating to the Shares in the form
first filed with the Commission pursuant to Rule 424(b)(1) or (4) of
the Rules and Regulations or, if no such filing is required, the form
of final prospectus included in the Registration Statement at the
Effective Date (as hereafter defined) is herein called the
"Prospectus." The date on which the Registration Statement becomes
effective is hereinafter called the "Effective Date." As
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used herein, the terms "Registration Statement", "Prospectus" and
"Preliminary Prospectus" shall include in each case the documents, if
any, incorporated by reference therein.
(b)When the Registration Statement becomes effective, and at
all subsequent times to and including the Closing Time (as hereinafter
defined) and at the Option Exercise Time (as hereinafter defined), or
for such longer period as the Prospectus may be required by the Act or
the Rules and Regulations or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or the rules and regulations promulgated
thereunder to be delivered in connection with sales of the Shares by
the Underwriters or a dealer, the Registration Statement and the
Prospectus (as amended or as supplemented if the Company shall have
filed with the Commission any amendment thereof or supplement thereto;
provided, however, that no amendment or supplement to the Registration
Statement or the Prospectus shall be made without prior consultation
with you) will comply with the requirements of the Act and the Rules
and Regulations, will contain all statements required to be stated
therein in accordance with the Act and the Rules and Regulations, will
not contain an untrue statement of a material fact and will not 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 (b) do not apply to
statements or omissions in the Registration Statement or the Prospectus
based upon and made in conformity with written information furnished to
the Company through or on behalf of the Underwriters specifically for
inclusion therein.
(c)Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied,
or will comply when so filed, in all material respects with the
Exchange Act and the applicable rules and regulations thereunder; and
none of such documents contained or will contain an untrue statement of
a material fact or omitted or will omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(d) The Commission has not issued an order preventing or
suspending the use of any Preliminary Prospectus with respect to the
Shares and has not instituted or, to the Company's knowledge,
threatened to institute any proceedings with respect to such an order.
Each Preliminary Prospectus, when filed with the Commission, conformed
in all material respects with the requirements of the Act and the Rules
and Regulations and, as of its date, did not include any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this sentence do not apply to
statements or omissions in each such Preliminary Prospectus based upon
and made in conformity with written information furnished to the
Company through or on behalf of the Underwriter specifically for
inclusion therein.
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(e) The Company is, and at the Closing Time and at the Option
Exercise Time will be, a corporation duly organized, validly existing
and in good standing under the laws of the State of Ohio. The Company
has, and at the Closing Time and at the Option Exercise Time will have,
the power and authority (corporate, governmental, regulatory and
otherwise) and has or will have all necessary approvals, orders,
licenses, certificates, permits and other governmental authorizations
(collectively the "Authorizations") to own or lease all of the assets
owned or leased by it and to conduct its business as described in the
Registration Statement and the Prospectus, except where the failure to
have any Authorization would not have a material adverse effect on the
condition (financial or otherwise), assets, business, properties,
prospects or results of operations of the Company and the Subsidiaries
(as hereinafter defined), taken as a whole (a "Material Adverse
Effect"). The Company is, and at the Closing Time and at the Option
Exercise Time will be, duly licensed or qualified to do business and in
good standing as a foreign corporation in all jurisdictions (i) in
which the nature of the activities conducted by the Company requires
such qualification and (ii) in which the Company owns or leases real
property, except where the failure to be so licensed or qualified would
not have a Material Adverse Effect. The Articles of Incorporation and
Code of Regulations of the Company comply in all material respects with
applicable law. A complete and correct copy of each of the Articles of
Incorporation and the Code of Regulations of the Company, in each case
as amended and as currently in effect, has been delivered or made
available to you or your counsel and no changes therein will be made
subsequent to the date hereof and prior to the expiration of the
Option.
(f) The First National Bank of Zanesville ("FNB") and
Bellbrook Community Bank ("Bellbrook") are the only subsidiaries of the
Company. Except as disclosed in the Prospectus, the Company does not
own, of record or beneficially, any equity securities of or any equity
interest in any equity or business enterprise, other than FNB and
Bellbrook (collectively, the "Subsidiaries").
(g) FNB is, and at the Closing Time and at the Option Exercise
Time will be, a bank duly organized, validly existing and in good
standing under the laws of the United States. The deposit accounts of
FNB are insured up to applicable limits by the Federal Deposit
Insurance Corporation (the "FDIC"), and no proceedings for the
termination or revocation of such insurance are pending or threatened.
FNB has, and at the Closing Time and at the Option Exercise Time will
have, the power and authority (corporate, governmental, regulatory and
otherwise) and has or will have all necessary Authorizations to own or
lease all of the assets owned or leased by it and to conduct its
business as described in the Registration Statement and the Prospectus,
except where the failure to have any Authorization would not have a
Material Adverse Effect. FNB is, and at the Closing Time and at the
Option Exercise Time will be, duly licensed or qualified to do business
and in good standing as a foreign corporation in all jurisdictions (i)
in which the nature of the activities conducted by FNB requires such
qualification and (ii) in which FNB owns or leases real property,
except where the failure to be so licensed or qualified would not have
a Material Adverse Effect. The Articles of Association and the Bylaws
of FNB comply in all material respects with applicable laws. A complete
and correct copy of
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the Articles of Association and the Bylaws of FNB, in each case as
amended and as currently in effect, have been delivered or made
available to you or your counsel, and no changes therein will be made
subsequent to the date hereof and prior to the expiration of the
Option.
(h) Bellbrook is, and at the Closing Time and at the Option
Exercise Time will be, a bank duly organized, validly existing and in
good standing under the laws of the State of Ohio. The deposit accounts
of Bellbrook are insured up to applicable limits by the FDIC, and no
proceedings for the termination or revocation of such insurance are
pending or threatened. Bellbrook has, and at the Closing Time and at
the Option Exercise Time will have, the power and authority (corporate,
governmental, regulatory and otherwise) and has or will have all
necessary Authorizations to own or lease all of the assets owned or
leased by it and to conduct its business as described in the
Registration Statement and the Prospectus, except where the failure to
have any Authorization would not have a Material Adverse Effect.
Bellbrook is, and at the Closing Time and at the Option Exercise Time
will be, duly licensed or qualified to do business and in good standing
as a foreign corporation in all jurisdictions (i) in which the nature
of the activities conducted by Bellbrook requires such qualification
and (ii) in which Bellbrook owns or leases real property, except where
the failure to be so licensed or qualified would not have a Material
Adverse Effect. The Articles of Incorporation and Code of Regulations
of Bellbrook comply in all material respects with applicable laws. A
complete and correct copy of the Articles of Incorporation and Code of
Regulations of Bellbrook, in each case as amended and as currently in
effect, have been delivered or made available to you or your counsel,
and no changes therein will be made subsequent to the date hereof and
prior to the expiration of the Option.
(i) This Agreement has been duly and validly authorized,
executed and delivered on behalf of the Company and constitutes a valid
and binding obligation of the Company enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, except as rights to indemnity and contribution hereunder
may be limited by applicable law. The execution, delivery and
fulfillment of the terms of this Agreement and the consummation of the
transactions contemplated hereby do not and will not (i) violate or
conflict with the respective Articles of Incorporation, Articles of
Association, Code of Regulations or Bylaws of the Company or any of the
Subsidiaries (ii) violate, conflict with or constitute a breach of, or
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, any agreement, indenture or other
instrument to which the Company or any of the Subsidiaries is a party,
(iii) result in a breach or violation of any of the terms and
provisions of, or constitute a default (or give rise to a state of
facts which, with notice or lapse of time, or both, would constitute a
default) under or result in the creation or imposition of any lien,
charge or encumbrance upon the assets or properties of the Company or
any of the Subsidiaries pursuant to any indenture, mortgage, deed of
trust, voting trust agreement, loan agreement, letter of credit
agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or
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instrument to which the Company or any of the Subsidiaries is a party
or by which the Company or any of their respective properties are
bound, or (iv) violate or conflict with any governmental license or
permit or any law, administrative regulation or authorization,
approval, court decree, injunction or order; except such breaches,
violations or defaults as would not have a Material Adverse Effect.
This Agreement and the resolutions of the Board of Directors
authorizing the same will be maintained continuously as an official
record of the Company consistent with the provisions of 12 U.S.C.
Section 1823(e).
(j) At the Closing Time and at the Option Exercise Time, the
Company will be authorized to issue only 7,500,000 common shares,
$10.00 par value per share (the "Common Shares"), and at the Closing
Time and the Option Exercise Time will have outstanding, fully paid and
nonassessable, [3,033,919]Common Shares without giving effect to the
issuance of Shares by the Company pursuant to this Agreement. At the
Closing Time and at the Option Exercise Time, the Company will have no
shares authorized or reserved for issuance pursuant to the exercise of
options or warrants. Subsequent to the date hereof and prior to the
Closing Time and the Option Exercise Time, the Company will not issue
any securities. Except as contemplated by this Agreement and as set
forth in the Registration Statement and the Prospectus, the Company
does not have outstanding, and at the Closing Time and at the Option
Exercise Time the Company will not have outstanding, any options to
purchase, or any rights or warrants to subscribe for, or any securities
or obligations convertible into, or any contracts or commitments to
issue or sell shares of capital stock or any warrants, convertible
securities or obligations.
(k) The consolidated financial statements of the Company and
the Subsidiaries (including the notes thereto) filed with and as part
of the Registration Statement and the Prospectus, or incorporated by
reference therein, fairly present the consolidated financial position
of the Company and the Subsidiaries as of the respective dates thereof
and the consolidated results of operations, cash flows and
shareholders' equity of the Company and the Subsidiaries for the
respective periods indicated, have been prepared in conformity with
generally accepted accounting principles applied on a basis consistent
with prior periods (except as otherwise described in the notes
thereto), and comply as to form in all material respects with any
applicable accounting requirements of the Commission and the FDIC.
Coopers & Lybrand L.L.P. (the "Company's Accountants"), who have
audited and reported on certain of such consolidated financial
statements, is a firm of independent certified public accountants
within the meaning of the Code of Professional Conduct of the American
Institute of Certified Public Accountants, as required by the Act and
the Rules and Regulations. The financial information and data set forth
in the Prospectus are fairly presented and were prepared on a basis
consistent with such financial statements or the books and records of
the Company, as the case may be. No financial statements or schedules
are required to be included in the Registration Statement or the
Prospectus which are not included therein.
(l) The Company has a duly authorized equity capitalization as
set forth in the Prospectus under the caption "CAPITALIZATION". Based
on the assumptions set forth
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in the Prospectus, including but not limited to the consummation of the
Acquisition (as hereinafter defined), the Company will have the
adjusted capitalization set forth in the column captioned "March 31,
1996 - Pro Forma" under "CAPITALIZATION" at the Closing Time. The
financial and statistical information and data set forth in the
Prospectus under the captions "PROSPECTUS SUMMARY," "RISK FACTORS,"
"USE OF PROCEEDS," "PRICE RANGE OF THE COMPANY'S COMMON STOCK AND
DIVIDENDS," "CAPITALIZATION," "SELECTED CONSOLIDATED FINANCIAL DATA OF
THE COMPANY," "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS OF THE COMPANY," "BUSINESS OF THE
COMPANY," "MANAGEMENT OF THE COMPANY," and "DESCRIPTION OF THE
COMPANY'S CAPITAL STOCK" are true and correct in all material respects
and, as to the financial information, are prepared on a basis
consistent with the audited financial statements of the Company.
(m) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus and at all
times prior to the expiration of the Option, except as set forth in or
contemplated by the Registration Statement and the Prospectus, (i) the
Company has and will have conducted its business in substantially the
same manner as on December 31, 1995, (ii) the Company has not incurred
and will not have incurred any material liabilities or obligations,
direct or contingent, or entered into any material transactions not in
the ordinary course of business; (iii) the Company has not paid or
declared and will not pay or declare any dividends or other
distributions on its capital stock; and (iv) there has not been and
will not have been any change in the capitalization of the Company or
any other change which would have a Material Adverse Effect.
(n) There are no actions, suits or proceedings at law or in
equity pending or, to the knowledge of the Company, threatened against
the Company or the Subsidiaries or any of their respective assets or
any of their respective officers or directors before or by any federal,
state, county or local court, commission, regulatory body, arbitration
panel, administrative agency or other governmental body, domestic or
foreign, wherein an unfavorable ruling, decision or finding could have
a Material Adverse Effect. Neither the Company nor any of the
Subsidiaries is involved in any labor dispute nor, to the Company's
knowledge, is any such dispute threatened, which dispute could have a
Material Adverse Effect.
(o) Neither the Company nor any of the Subsidiaries is in
violation of any rule or regulation of the Commission, the Board of
Governors of the Federal Reserve System (the "Federal Reserve"), the
Ohio Department of Commerce, Division of Financial Institutions (the
"Division"), the Office of the Comptroller of the Currency (the "OCC")
or the FDIC, which could have a Material Adverse Effect. Neither the
Company nor any of the Subsidiaries is subject to any directive from
the Federal Reserve, the Division, the OCC or the FDIC to make any
change in the method of conducting its business or affairs, and the
Company and the Subsidiaries have conducted their business in
compliance with all applicable statutes and regulations (including,
without limitation, all regulations, decisions,
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directives and orders of the Federal Reserve, the Division, the OCC and
the FDIC), except where the failure to so comply would not have a
Material Adverse Effect. Except as set forth in the Prospectus, there
is not pending or, to the knowledge of the Company, threatened any
litigation, charge, investigation, action, suit or proceeding before or
by any court, regulatory authority or governmental agency or body
which, individually or in the aggregate, would affect the performance
of the terms and conditions of this Agreement or the consummation of
the transactions contemplated hereby or which, individually or in the
aggregate, would have a Material Adverse Effect.
(p) There has been no material adverse change in the condition
(financial or otherwise), assets, business, properties, prospects or
results of operations of the Company and the Subsidiaries taken as a
whole, since the latest date as of which such condition is set forth in
the Prospectus, except as referred to therein. The capitalization,
assets, properties and business of the Company and the Subsidiaries
conform in all material respects to the descriptions thereof contained
in the Prospectus as of the date specified. Subsequent to the
respective dates as of which information is given in the Prospectus,
except as otherwise may be indicated therein, neither the Company nor
any of the Subsidiaries has incurred any liability or obligation,
direct or contingent, for borrowed money, except borrowings in the
ordinary course of business, or entered into any other transaction not
in the ordinary course of business, which is material in light of the
businesses and properties of the Company and the Subsidiaries, taken as
a whole. Neither the Company nor any of the Subsidiaries have any
material contingent liabilities of any kind, except as set forth in the
Prospectus.
(q) Except as set forth in the Prospectus, no material default
(or event which, with notice or lapse of time, or both, would
constitute a material default) exists on the part of the Company or any
of the Subsidiaries or, to the knowledge of the Company, on the part of
any other party, in the due performance and observance of any term,
covenant or condition of any agreement to which the Company or any of
the Subsidiaries is a party and which is material to the condition
(financial or otherwise) of the Company and the Subsidiaries, taken as
a whole. Such agreements are in full force and effect, and no other
party to any such agreement has instituted or, to the knowledge of the
Company, threatened any action or proceeding wherein the Company or any
of the Subsidiaries is or would be alleged to be in default thereunder,
under circumstances where such action or proceeding, if determined
adversely to the Company or any of the Subsidiaries would have a
Material Adverse Effect.
(r) Neither the Company nor any of the Subsidiaries is in
violation of its respective Articles of Incorporation, Articles of
Association, Code of Regulations or Bylaws, in each case as amended as
of the date hereof, or is in default, in any material respect, in the
performance of any material obligations, agreement or condition
contained in any bond, debenture, note or any other evidence of
indebtedness by which it is bound.
(s) The Company and the Subsidiaries have, and at the Closing
Time and at the Option Exercise Time will have, complied in all
material respects, except as described in
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the Prospectus, with all laws, regulations, ordinances and orders
relating to public health, safety or the environment (including without
limitation all laws, regulations, ordinances and orders relating to
releases, discharges, emissions or disposals to air, water, land or
groundwater, to the withdrawal or use of groundwater, to the use,
handling or disposal of polychlorinated biphenyls, asbestos or urea
formaldehyde, to the treatment, storage, disposal or management of
hazardous substances, pollutants or contaminants, or to exposure to
toxic, hazardous or other controlled, prohibited or regulated
substances), the violation of which would or might have a Material
Adverse Effect on the consummation of the transactions contemplated by
this Agreement. In addition, and irrespective of such compliance, the
Company and the Subsidiaries are not subject to any liabilities for
environmental remediation or clean-up, including any liability or class
of liability of the lessee under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, or the
Resource Conservation and Recovery Act of 1976, as amended, which
liability would or might have a Material Adverse Effect on the
consummation of the transactions contemplated by this Agreement.
(t) The Company and the Subsidiaries (i) keep books, records
and accounts that, in reasonable detail, accurately and fairly reflect
the transactions and dispositions of the assets of the Company and the
Subsidiaries and (ii) maintain systems of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific
authorization, (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets, (C) access to assets is permitted only in accordance with
management's general or specific authorization and (D) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences. Neither the Company nor any of the Subsidiaries has
made any payment to any state, federal or foreign governmental officer
or official or other person charged with similar public or quasi-public
duties (other than payments required or permitted by the laws of the
United States or any jurisdiction thereof.)
(u) The outstanding Common Shares have been and, upon issuance
and payment therefor, all of the Shares to be sold by the Company will
be, duly authorized, validly issued, fully paid and nonassessable and
not subject to preemptive rights. The holders of Common Shares will not
be subject to personal liability for the obligations of the Company
solely by reason of being such holders. The Common Shares and the
Shares conform, and when the Registration Statement becomes effective,
at the Closing Time and at the Option Exercise Time, will conform, to
all statements with regard thereto contained in the Registration
Statement and the Prospectus, and the issuance and sale of the Shares
to be issued and sold by the Company have been duly and validly
authorized by all necessary corporate action on the part of the
Company. The certificates evidencing the Shares will conform with the
requirements of applicable laws and regulations.
(v) All of the issued and outstanding shares of capital stock
of the Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable and are
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owned by the Company, free and clear of any liens, charges,
encumbrances or restrictions, except as set forth in the Prospectus.
(w) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement, except such
as may be required under the Act, the Exchange Act or under state
securities or Blue Sky laws or except such as have been obtained.
(x) The Company and the Subsidiaries have good and marketable
title to all properties and assets described in the Prospectus as owned
by them, free and clear of all liens, charges, encumbrances or
restrictions, except such as are described in or referred to in the
Prospectus or such as would not have a Material Adverse Effect. The
Company and the Subsidiaries have valid, subsisting and enforceable
leases for the properties reflected in the Prospectus as leased by
them, except as enforceability may be limited by general equitable
principles, bankruptcy, insolvency, moratorium, reorganization or other
laws affecting creditors' rights generally.
(y) There is no document or contract of a character required
to be described in the Prospectus or to be filed as an exhibit to the
Registration Statement which is not described or filed as required. No
statement, representation, warranty or covenant made by the Company in
this Agreement or in any certificate or document required by this
Agreement to be delivered to you is, was when made or, as of the
Closing Time and the Option Exercise Time, will be, inaccurate, untrue
or incorrect. No transaction has occurred between or among the Company
and the Subsidiaries and any of their respective officers, directors or
shareholders or any affiliate of any such officer, director or
shareholder that is required by the Act or the Rules and Regulations to
be described in, and is not described in, the Registration Statement
and the Prospectus.
(z) The Company and the Subsidiaries own or possess all
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets, applications and other unpatented or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names (collectively,
"Proprietary Rights") used in or necessary for the conduct of the
business of the Company as now conducted and as proposed to be
conducted as described in the Prospectus. The Company and the
Subsidiaries have the right to use all Proprietary Rights used in or
necessary for the conduct of their respective businesses without
infringing the rights of any person or violating the terms of any
licensing or other agreement to which the Company or any of the
Subsidiaries is a party and, to the Company's knowledge, no person is
infringing upon any of the Proprietary Rights, except where the
infringement of or lack of a right to use such Proprietary Rights would
not have a Material Adverse Effect. Except as disclosed in the
Prospectus, no charges, claims or litigation have been asserted or, to
the Company's knowledge, threatened against the Company or any of the
Subsidiaries contesting the right of the Company or any of the
Subsidiaries to use, or the validity of, any of the Proprietary Rights
or challenging or questioning the validity or effectiveness of
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any license or agreement pertaining thereto or asserting the misuse
thereof, and, to the Company's knowledge, no valid basis exists for the
assertion of any such charge, claim or litigation. All licenses and
other agreements to which the Company or any of the Subsidiaries is a
party relating to Proprietary Rights are in full force and effect and
constitute valid, binding and enforceable obligations of the Company
and the Subsidiaries and, to the Company's knowledge, the other parties
thereto, subject in each case to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles, as the case may be, and there have not been and
there currently are not any defaults (or any events which, with notice
or lapse of time, or both, would constitute a default) by the Company
or any of the Subsidiaries under any license or other agreement
affecting Proprietary Rights used in or necessary for the conduct of
the business of the Company or any of the Subsidiaries except for
defaults, if any, which would not have a Material Adverse Effect. The
validity, continuation and effectiveness of all licenses and other
agreements relating to the Proprietary Rights and the current terms
thereof will not be affected by the transactions contemplated by this
Agreement.
(aa) The Company intends to apply its proceeds from the sale
of the Shares for the purposes set forth in the Prospectus under the
caption "USE OF PROCEEDS."
(bb) Neither the Company nor any of the Subsidiaries conducts
or intends to conduct its business in a manner in which it would become
an "investment company" as defined in Section 3(a) of the Investment
Company Act of 1940, as amended.
(cc) All issuances and sales by the Company of its securities
prior to the date hereof were either (i) registered under the Act, or
(ii) exempt from registration under the Act, and all such issuances and
sales complied in all respects with the provisions of all applicable
federal and state securities laws. Except as set forth in or
contemplated by the Prospectus, no holder of any securities of the
Company has the right to require registration of any Common Shares or
other securities of the Company because of the filing or effectiveness
of the Registration Statement.
(dd) Neither the Company nor any of its officers or directors
or affiliates (as defined in the Rules and Regulations) has taken or
will take, directly or indirectly, any action designed to stabilize or
manipulate the price of any security of the Company or any action which
has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of
the Company, to facilitate the sale or resale of any of the Shares.
(ee) The Company and the Subsidiaries have not, and at the
Closing Time and at the Option Exercise Time will not have, incurred
any liability for financial advisory, finder's or brokerage fees or
agent's commissions in connection with the offer and sale of the
Shares, this Agreement or the transactions hereby contemplated, except
for the Underwriters' discounts and commissions provided for in this
Agreement.
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(ff)Company and the Subsidiaries have timely filed all
federal, state, local and foreign income, employment, withholding
franchise and other tax returns required to be filed through the date
hereof and have paid all taxes shown as due thereon or made adequate
reserves for similar future tax liabilities. Except as disclosed in the
Prospectus, no tax deficiency has been, nor does the Company have any
knowledge of any tax deficiency which might be, asserted against the
Company or any of the Subsidiaries by any taxing authorities, which
would have a Material Adverse Effect.
(gg) The Company has not relied upon the Underwriters or their
legal counsel or other advisors for any legal, tax or accounting advice
in connection with the transactions contemplated by this Agreement.
(hh) The Stock Purchase Agreement by and between the Company
and First Financial Group, Inc. ("FFG") dated March 27, 1996, (the
"Acquisition Agreement"), pursuant to which the Company will acquire
all of the issued and outstanding shares of County Savings Bank
("County") in consideration and exchange for $44,775,000 (the
"Acquisition"), has been duly and validly authorized, executed and
delivered on behalf of the Company and constitutes a valid and binding
obligation of the Company enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(ii) At March 27, 1996, and the date hereof, the Company had
and has the corporate power and authority to enter into the Acquisition
Agreement, to purchase all of the common shares of County and to
consummate any other transactions contemplated by the Acquisition
Agreement.
(jj) The execution and delivery of the Acquisition Agreement
and the consummation of the transactions therein contemplated did not
and will not violate or conflict with the Articles of Incorporation,
the Articles of Association, the Code of Regulations or the Bylaws of
the Company, FNB or Bellbrook, (B) violate, conflict with or constitute
a breach of, or a default (or an event which, with notice or lapse of
time or both, would constitute a default) under any agreement,
indenture, or other instrument to which the Company, FNB or Bellbrook
is a party, (C) result in a breach or violation of the terms and
provisions of, or constitute a default (or give rise to a state of
facts which, with notice or lapse of time or both, would constitute a
default) under or result in the creation or imposition of any lien,
charge or encumbrance upon the assets or properties of the Company, FNB
or Bellbrook, pursuant to any indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, letter of credit agreement, or
other agreement or instrument to which the Company, FNB or Bellbrook is
a party or by which the Company, FNB or Bellbrook or any of their
respective properties are bound, or (D) violate or conflict with any
government license or permit or any law, administrative regulation or
authorization, approval, court decree, injunction or order; except such
breaches, violations or defaults as would not have a Material Adverse
Effect.
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(kk) The consolidated financial statements of County included
in the Registration Statement and the Prospectus comply in all material
respects with the Act and present fairly the consolidated financial
position of County as of the dates indicated, and the consolidated
results of operations, cash flows and changes in financial position of
County for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the entire period involved
except to the extent disclosed therein.
The pro forma financial statements and other pro forma information
included in the Prospectus present fairly the information shown
therein, have been prepared in accordance with generally accepted
accounting principles and the Commission's rules and guidelines with
respect to pro forma financial statements and other pro forma
information, have been properly compiled on the pro forma basis
described therein, and, in the opinion of the Company, the assumptions
used in the preparation thereof are reasonable and the adjustments used
therein are appropriate under the circumstances.
(ll) There are no actions, suits or proceedings at law or in
equity pending, or to the knowledge of the Company, threatened, against
the Company, FFG or County or any of their respective assets or
respective subsidiaries that challenges, or may have the effect of
preventing, delaying, making illegal or otherwise interfering with, any
of the transactions contemplated by the Acquisition Agreement.
(mm) Neither the Company nor FFG has, and at the Closing Time
or the Option Exercise Time will have, committed an act which
constitutes a breach of, or default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, any
provision of the Acquisition Agreement, which has not been remedied by
the breaching or defaulting party. The Company has not received a
supplement to FFG's disclosure letter delivered pursuant to the
Acquisition Agreement (the "Disclosure Letter") which discloses a
ground for termination of the Acquisition Agreement.
(nn) Since December 31, 1995 to the date hereof, the Company
has not experienced or suffered a material adverse change to its
business condition or entered into any contract, agreement or
understanding which would adversely affect its ability to perform its
obligations under the Acquisition Agreement.
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4. Purchase, Sale and Delivery of the Shares; Closing; Distribution.
(a) (i) On the basis of the representations and warranties set
forth in this Agreement and subject to the terms and conditions herein
set forth, the Company agrees to sell to the Underwriters the Firm
Shares and the Underwriters agree to purchase such Firm Shares from the
Company, at and for a price of $_____ per Share (the "Purchase Price"),
only in those jurisdictions and in such amounts where due qualification
and/or registration has been effected or an exemption from such
qualification and/or registration is available under the applicable
securities or Blue Sky laws of such jurisdiction. This agreement to
purchase Shares only covers the initial sale of the Shares by the
Underwriters and not any subsequent sale of such Shares in any trading
market which may develop after the public offering.
(ii) Delivery of the Firm Shares shall be made to you, for the
accounts of the respective Underwriters, at the offices of McDonald &
Company Securities, Inc. ("McDonald & Company"), at Suite 2100, 800
Superior Avenue, Cleveland, Ohio 44114-2603, or such other location as
you and the Company shall agree, against payment by you, on behalf of
the several Underwriters, of the purchase price therefor by delivery of
certified or bank cashier's checks payable in next day funds to the
order of the Company for the shares sold at 10:00 a.m., Cleveland time,
on ____________, 1996, or on such other business day (Saturdays,
Sundays and legal holidays in the City of Cleveland not being
considered business days for the purposes of this Agreement) not later
than the ______ calendar day (or the business day next following such
______ calendar day if such ______ calendar day shall not be a business
day) following the date of this Agreement as you shall determine and
advise the Company by at least two full business days' notice in
writing, which time and date are herein called the "Closing Time."
Delivery of the Firm Shares shall be made in registered form in such
name or names and in such denominations as you shall request by at
least two full business days' notice in writing. The cost of original
issue tax stamps and transfer stamps, if any, in connection with the
issuance and delivery or sale of the Firm Shares by the Company to the
Underwriters shall be borne by the Company. The Company will pay and
save harmless each the Underwriter or its nominees, and any subsequent
holder of the Firm Shares from any and all liabilities with respect to
or resulting from any failure or delay in paying federal or state stamp
and other transfer taxes, if any, which may be payable or determined to
be payable in connection with the sale by the Company to such
Underwriter of the Firm Shares or any portion thereof.
(iii) The Company will make the certificates for the Firm
Shares available to you for examination at such offices as you shall
designate, not later than 2:00 p.m., on the business day preceding the
Closing Time.
(iv) The obligations of the several Underwriters to purchase
and pay for the Firm Shares shall be subject to compliance as of such
date with all the conditions specified in Section 8 hereof and to the
absence of any termination of this Agreement pursuant to Section 10.
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(b)(i) The Company hereby grants to the Underwriters an option
(the "Option") to purchase from the Company up to _________ Option
Shares, at and for a price for each Option Share equal to the Purchase
Price; provided, however, that the Option may be exercised only for the
purpose of covering any over-allotments which may be made by you in
connection with the distribution and sale of the Firm Shares.
(ii) The Option is exercisable by you in whole or in part at
any time on or before 12:00 noon, Cleveland time, on the day prior to
the Closing Time, and at any time thereafter during the period ending
30 days after the date of the Prospectus, by giving notice to the
Company in the manner provided in Section 11 hereof, setting forth the
number of Option Shares as to which the Option is being exercised, the
name or names in which the certificates for such Option Shares are to
be registered, the denominations of such certificates and the date of
delivery of such Option Shares, which date, if not the Closing Time,
shall not be less than two nor more than _____ business days after such
notice.
(iii) Upon the exercise of the Option, the Company shall sell
to the Underwriters the number of Option Shares specified in the notice
exercising the Option, and the Underwriters, on the basis of the
representations and warranties of the Company contained herein and in
each certificate and document contemplated under this Agreement to be
delivered to you, but subject to the terms and conditions of this
Agreement, shall purchase from the Company the number of Option Shares
specified in such notice.
(iv) Delivery of the Option Shares with respect to which the
Option shall have been exercised shall be made to you for the account
of the several Underwriters, at the offices of McDonald & Company at
Suite 2100, 800 Superior Avenue, Cleveland, Ohio 44114-2603 or such
other location as you and the Company shall agree, against payment by
you, on behalf of the respective Underwriters, of the aggregate
Purchase Price therefor to the Company by certified or bank cashier's
check or checks payable in next-day funds to the order of the Company
in the amount to which the Company is entitled, at 10:00 a.m.,
Cleveland time, on the date and in the place designated in the notice
given by you as above provided for, unless some other place, time and
date is mutually agreed upon (such time and date being herein called
the "Option Exercise Time"). The cost of original issue tax stamps or
transfer stamps, if any, in connection with each issuance and delivery
of the Option Shares by the Company to the Underwriters shall be borne
by the Company. The Company will pay and save harmless each Underwriter
or its nominees, and any subsequent holder of Option Shares from any
and all liabilities with respect to or resulting from any failure or
delay in paying federal and state stamp taxes, if any, which may be
payable or determined to be payable as a result of the sale by the
Company to the Underwriters of the Option Shares or any portion
thereof.
(v) The Company will make the certificates for the Option
Shares to be purchased at the Option Exercise Time available to you for
examination at such offices as you shall
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designate, not later than 2:00 p.m., on the business day next preceding
such Option Exercise Time.
(vi) The obligation of the several Underwriters to purchase
and pay for the Option Shares at the Option Exercise Time shall be
subject to compliance as of such date with all the conditions specified
in Section 8 hereof and to the absence of any termination of this
Agreement pursuant to Section 10 hereof.
(c) Subject to the terms and conditions hereof, the several
Underwriters agree that (i) they will offer the Shares to the public as
set forth in the Prospectus as soon after the Registration Statement
becomes effective as may be practicable, (ii) they will offer and sell
the Shares to the public only in those jurisdictions and in such
amounts where due qualification and/or registration has been effected
or an exemption from such qualification and/or registration is
available under the applicable securities or blue sky laws of such
jurisdiction, and (iii) the Shares will be offered and sold only in
those jurisdictions where broker/dealer licensing has been obtained or
where there is an exemption from such licensing. This agreement to
offer Shares to the public only covers the initial sale of the Shares
by the Underwriters and not any subsequent sale of such Shares in any
trading market which may develop after the public offering.
5. Registration Statement and Prospectus.
(a) The Company will deliver to each of the Underwriters,
without charge, two fully signed copies of the Registration Statement
and of each amendment thereto (including all financial statements,
exhibits and documents incorporated by reference) and the number of
conformed copies of the Registration Statement and of each amendment
thereto (including all financial statements and documents incorporated
by reference, but excluding exhibits) as you may reasonably request.
(b) The Company has delivered to each Underwriter and to each
of the dealers selected by you in connection with the distribution of
the Shares (a "Selected Dealer" and, collectively, "Selected Dealers"),
without charge, as many copies as you have requested of each
Preliminary Prospectus heretofore filed with the Commission and will
deliver to each Underwriter and to any Selected Dealer, without charge,
on the Effective Date, and thereafter from time to time during the
period in which the Prospectus is required by law to be delivered in
connection with sales of Shares by an Underwriter or a dealer, as many
copies of the Prospectus and any documents incorporated by reference
(and, in the event of any amendment of or supplement to the Prospectus,
of such amended or supplemented Prospectus) as you may reasonably
request.
(c) The Company has authorized the Underwriters to use and to
make available for use by prospective dealers the Preliminary
Prospectuses and authorizes each Underwriter, all Selected Dealers and
all dealers to whom any of such Shares may be sold by the Underwriters
or by any Selected Dealer to use the Prospectus, as from time to time
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amended or supplemented, in connection with the sale of the Shares in
accordance with the applicable provisions of the Act, the applicable
Rules and Regulations and applicable state law until completion of the
public offering of the Shares and for such longer period as you may
request if the Prospectus is required to be delivered in connection
with sales of the Shares by an Underwriter or a dealer.
6. Covenants of the Company. The Company covenants and agrees with the
Underwriter that:
(a) After the execution and delivery of this Agreement, the
Company will not at any time, whether before or after the Effective
Date, file any amendment of or supplement to the Registration Statement
or the Prospectus of which you shall not previously have been advised
and furnished with a copy, or which you or Vorys, Sater, Seymour and
Pease ("Counsel for the Underwriters") shall not have approved (which
approval shall not be unreasonably withheld or delayed) or which is not
in compliance with the Act or the Rules and Regulations.
(b) If the Registration Statement has not become effective,
the Company will promptly file the Final Amendment with the Commission and will
use its best efforts to cause the Registration Statement to become effective. If
the Registration Statement has become effective, the Company will file the Rule
430A Prospectus or other Prospectus with the Commission as promptly as
practicable, but in no event later than is permitted by Rule 424(b). The Company
will promptly advise you (i) when the Registration Statement or any
post-effective amendment thereto shall hereafter become effective, or any
amendments or supplements to the Prospectus or any document which shall be
incorporated by reference into the Prospectus shall have been filed with the
Commission; (ii) of the nature and substance of any request of the Commission or
any state or other regulatory body for any amendment or supplement of the
Registration Statement or the Prospectus or for additional information; (iii) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of any order preventing or suspending the use of
any Preliminary Prospectus or prohibiting the offer or sale of any of the Shares
or of the initiation of any proceedings for such purpose; (iv) of any receipt by
the Company of any notification with respect to the suspension of qualification
of the Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and (v) of the happening of any event during
the periods in which the Prospectus is to be used in conjunction with the offer
or sale of Shares which makes any statement made in the Registration Statement
or the Prospectus untrue in any material respect or which requires the making of
any changes in the Registration Statement or the Prospectus in order to make the
statements therein not misleading. The Company will use its best efforts to
prevent the issuance of any stop order or any order preventing or suspending the
use of the Registration Statement or Prospectus and, if such order is issued, to
obtain the lifting thereof as promptly as possible.
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(c) The Company will prepare and file with the Commission,
upon your request, any such amendments of or supplements to the
Registration Statement or the Prospectus, in form satisfactory to
Emens, Kegler, Brown, Hill & Ritter ("Counsel for the Company"), as, in
the opinion of Counsel for the Underwriters, may be necessary or
advisable in connection with the distribution of the Shares or any
change in the price at which, or the terms upon which, the Shares may
be offered by you and will use its best efforts to cause the same to
become effective as promptly as possible.
(d) The Company will comply with the Act, the Rules and
Regulations and the Exchange Act, and the rules and regulations
thereunder, so as to permit the continuance of sales of and dealings in
the Shares under the Act and the Exchange Act. If at any time when a
prospectus is required to be delivered under the Act an event shall
have occurred as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein not
untrue or not misleading in any material respect or to make the
Prospectus comply with the Act and the Rules and Regulations, the
Company will notify you promptly thereof and will, subject to the
provisions of Section 6 (a) hereof, file with the Commission an
amendment or supplement which will correct such statement in accordance
with the requirements of Section 10 of the Act and shall furnish to the
Underwriter a reasonable number of copies of an amendment or amendments
or of a supplement or supplements to the Prospectus (in form and
substance reasonably satisfactory to Counsel for the Company and
Counsel for the Underwriters) which shall amend or supplement the
Prospectus so that, as amended or supplemented, the Prospectus will not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances existing at the time the Prospectus is
delivered to a purchaser of the Shares, not misleading. The Company
will not file or use any amendment or supplement to the Registration
Statement or the Prospectus of which the Underwriters have not first
been furnished a copy or as to which the Underwriters shall reasonably
object after having been furnished such copy.
(e) The Company will comply with all of the provisions of any
undertakings contained in the Registration Statement.
(f) The Company will take all reasonable actions to furnish to
whomever you direct, when and as requested by you, all necessary
documents, exhibits, information, applications, instruments and papers
as may be required or, in the opinion of Counsel for the Underwriters,
desirable in order to permit or facilitate the sale of the Shares. The
Company will use its best efforts to qualify or register the Shares for
sale under the so-called "blue sky" laws of such jurisdictions as you
shall request, to make such applications, file such documents and
furnish such information as may be required for such purpose and to
comply with such laws so as to continue such qualification in effect so
long as required for the purposes of the distribution of the Shares;
provided, however, that the Company shall not be required to qualify as
a foreign corporation in any jurisdiction, and provided further that
the Company shall not be required to file a consent to service of
process in any jurisdiction in any action other than one arising out of
the offering or sale of the Shares.
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(g) During the period of two years commencing on the Effective
Date, the Company will furnish to each Underwriter, in such quantity as
the Underwriter may reasonably request, (i) within 90 days after the
end of each fiscal year of the Company, either (A) a consolidated
balance sheet of the Company and its then consolidated subsidiaries,
and a separate balance sheet of each subsidiary of the Company, the
accounts of which are not included in such consolidated balance sheet,
as of the end of such fiscal year, and consolidated statements of
operations, cash flows and changes in shareholders' equity of the
Company and its then consolidated subsidiaries, and separate statements
of operations, cash flows and changes in shareholders' equity of each
of the subsidiaries of the Company, the accounts of which are not
included in such consolidated statements, for the fiscal year then
ended, all in reasonable detail, prepared in accordance with generally
accepted accounting principles, consistently applied, and all certified
by independent accountants (within the meaning of the Act and the Rules
and Regulations), or (B) the Company's Form 10-K (or Form 10-KSB) for
such fiscal year as filed with the Commission in accordance with the
Exchange Act; (ii) within 45 days after the end of each of the first
three fiscal quarters of each fiscal year, either (A) similar balance
sheets as of the end of such fiscal quarter and similar statements of
operations, cash flows and changes in shareholders' equity for the
fiscal quarter then ended, all in reasonable detail, and all certified
by the Company's principal financial officer or the Company's principal
accounting officer as having been prepared in accordance with generally
accepted accounting principles, consistently applied, or (B) the
Company's Form 10-Q (or Form 10-QSB) for such fiscal quarter as filed
with the Commission in accordance with the Exchange Act; (iii) as soon
as available, each report and each proxy or information statement
furnished to or filed with the Commission, any securities exchange or
the National Association of Securities Dealers, Inc. (the "NASD") and
each report and financial statement furnished to the Company's
shareholders generally; and (iv) any material reports filed by the
Company in connection with the quotation of its Common Shares on The
Nasdaq Stock Market or any listing on any stock exchange.
(h) Counsel for the Company, the Company's Accountants and the
officers of the Company will respectively furnish the opinions, the
letters, the certificates and the agreements referred to in subsections
(e), (f), (g), (h), (i) and (j) of Section 8 hereof, and, in the event
that the Company shall file any amendment to the Registration Statement
relating to the offering of the Shares or any amendment or supplement
to the Prospectus relating to the offering of the Shares subsequent to
the Effective Date, whether pursuant to subsection (c) of this Section
6 or otherwise, such counsel, such accountants, and such officers will,
at the time of such filing or at such subsequent time as you shall
specify, respectively furnish to you such opinions, letters and
certificates, each dated the date of its delivery, of the same nature
as the opinions, letters, certificates and the agreements referred to
in subsections (e), (f), (g), (h), (i) and (j) of Section 8 hereof, as
you may reasonably request.
(i) Prior to the expiration of the Option, the Company will
not issue, directly or indirectly, without first consulting with you
and Counsel for the Underwriters, any press
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release or other communication or hold any press conference with
respect to the Company or its activities or the offering contemplated
hereby.
(j) Except as described in the Prospectus or as contemplated
by this Agreement, the Company, its directors and officers and each
beneficial owner of more than 5% of the Common Shares shall not,
without your prior written consent, sell, contract to sell or otherwise
dispose of any Common Shares, or any securities convertible into Common
Shares, for a period of 180 days after the Effective Date. In
connection with the execution of this Agreement, the Company shall
deliver to you the written agreement of each of the directors and
executive officers of the Company and each beneficial owner of more
than 5% of the Common Shares to the effect that such person shall not,
without your prior written consent, for a period of 180 days after the
Effective Date, offer, sell, contract to sell, or grant any option to
purchase or otherwise dispose of any Common Shares or any securities
convertible into or exchangeable for Common Shares.
(k) The Company will not at any time, directly or indirectly,
take any action designed to, which will constitute or which might
reasonably be expected to cause or result in the stabilization of the
price of the Shares to facilitate the sale or resale of the Shares.
(l) The Company will apply the net proceeds from the sale of
the Shares in the manner set forth under the caption "USE OF PROCEEDS"
in the Prospectus.
(m) The Company will file with the NASD all documents and
notices required of companies that have issued securities that are
traded in the over-the-counter market and quotations for which are
reported on the Nasdaq National Market.
(n) After the Closing Time and the Option Exercise Time, the
Company and the Subsidiaries will be and remain in compliance with the
financial record-keeping requirements and internal accounting control
requirements of Section 13(b)(2) of the Exchange Act.
(o) The Company and the Subsidiaries will take such actions
and furnish such information as reasonably requested by the Underwriter
in order for the Underwriter to ensure compliance with the NASD's
"Interpretation Relating to Free-Riding and Withholding."
(p) Not later than the 45th day following the end of the
fiscal quarter first occurring after the first anniversary of the
Effective Date, the Company will make generally available to its
securities holders and deliver to you an earnings statement (which need
not be audited) covering a period of at least 12 months beginning not
earlier than the Effective Date, which shall satisfy the provisions of
Section 11(a) of the Act and/or Rule 158 promulgated under the Act.
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(q) If a breach of, or default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, any
provision of the Acquisition Agreement occurs, or the Company receives
any supplement to the Disclosure Letter which discloses a possible
ground for the Company not to consummate the transactions contemplated
by the Acquisition Agreement, the Company shall promptly notify you by
telephone on the day the Company first has knowledge of the breach or
default or supplement.
(r) The Company shall use its best efforts to (A) perform and
fulfill all conditions and obligations to be performed or fulfilled by
it under the Acquisition Agreement, (B) cure promptly any breach of its
obligations under the Acquisition Agreement, (C) effect the purchase of
the common shares of County in accordance with the terms and conditions
of the Acquisition Agreement, (D) promptly notify you of its inability
to satisfy any condition or perform any obligation under the
Acquisition Agreement, and the reasons for such inability, and (E)
promptly notify you of FFG's inability to satisfy any condition or
perform any obligation under the Acquisition Agreement, and the reasons
for such inability.
(s) The Company shall deliver to you copies of (A) all filing
made by the Company, FFG and County pursuant to any federal, state,
local, municipal, foreign, international, multinational, or other
administrative order, constitution, law, ordinance, principle of common
law, regulation, statutes or treaty, including all filings under
applicable banking and thrift law, in connection with the transactions
contemplated by the Acquisition Agreement, and (B) any regulatory,
supervisory or other public authority approval letters received by the
Company, FFG or County in connection with the transactions contemplated
by the Acquisition Agreement.
(t) The Company shall promptly forward to you any statement
from FFG describing any outstanding basis for its refusal to close the
transactions contemplated by the Acquisition Agreement, on the same day
that such statement is received by the Company, and the Company shall
inform you of its intent to submit a statement to FFG describing any
outstanding basis for its refusal to close the transactions
contemplated by the Acquisition Agreement, prior to its forwarding of
such statement to FFG.
7. Expenses. The Company will pay and bear all costs, fees, taxes and
expenses incident to the performance of the obligations of the Company under
this Agreement including, but not limited to: (a) the costs incident to the
issuance, sale and delivery to the Underwriters of the Shares; (b) the costs
incident to the preparation, printing and filing under the Act of each
Preliminary Prospectus, the Prospectus, the Registration Statement and any
amendments thereto, supplements thereof and exhibits thereto; (c) the costs of
printing and distributing to each Underwriter and any Selected Dealers copies of
any Preliminary Prospectus, the Prospectus, the Registration Statement and any
amendment thereto or supplement thereof required by this Agreement or the Act;
(d) the costs of preparing, printing, mailing, delivering, filing and
distributing preliminary and final blue sky memoranda, Underwriter's
Questionnaires and Powers of Attorney, letters to prospective Underwriters, the
Agreement among Underwriters, the Selected Dealer Agreement, this Agreement and
all documents related thereto; (e) the filing fees
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of the Commission; (f) the costs of qualification or registration of the Shares
in the jurisdictions referred to in Section 6(f) hereof, including the legal
fees and expenses of Counsel for the Underwriters in connection therewith and
all filing fees in connection therewith; (g) the cost of preparation of all
filings with the NASD and all filing fees in connection therewith; (h) fees and
expenses of Counsel for the Company, the Company's Accountants and the Company's
consultants; and (i) all costs and expenses incurred or to be incurred by the
Company in connection with the transactions contemplated by this Agreement. If
the Firm Shares are not sold to the Underwriters by reason of any failure,
refusal or inability on the part of the Company to perform any agreement on its
part to be performed hereunder or to fulfill any condition of the Underwriters'
obligations hereunder, or if you shall terminate this Agreement pursuant to
Section 10(a) hereof, the Company shall promptly reimburse you for all
reasonable expenses actually incurred by you in contemplation of the performance
by it of its obligations hereunder, including but not limited to the fees and
disbursements of Counsel for the Underwriters, the Underwriters' reasonable
printing and traveling expenses and postage, telegraph and telephone charges
relating directly to the offering contemplated by the Prospectus, and also
including reasonable advertising expenses of the Underwriter incurred after the
Effective Date, up to a maximum of $___________________.
8. Conditions of the Underwriter's Obligations. The Underwriters'
obligations hereunder to purchase and pay for the Shares are subject (as of the
date hereof, the Closing Time and the Option Exercise Time) to the accuracy of
and compliance with the representations and warranties of the Company herein and
in each certificate and document contemplated under this Agreement to be
delivered, to the performance by the Company of its covenants and agreements
hereunder and under each such certificate and document, and to the following
additional conditions:
(a) (i) The Registration Statement shall have become effective
not later than 5:00 p.m., Cleveland time, on the date of this
Agreement, or at such later time or on such later date as you may agree
to in writing; (ii) if required, the Prospectus shall have been filed
with the Commission pursuant to Rule 424(b)(1) or (4) of the Rules and
Regulations within the applicable time period prescribed for such
filing thereunder and in accordance with the provisions of Section 6(b)
hereof; (iii) at or prior to the Closing Time or the Option Exercise
Time, as the case may be, no stop order suspending the effectiveness of
the Registration Statement or the qualification or registration of the
Shares under the blue sky laws of any jurisdiction shall have been
issued and no proceeding for that purpose shall have been initiated or
shall be threatened or contemplated by the Commission or the
authorities of any such jurisdiction; (iv) any request for additional
information on the part of the Commission or any such authorities shall
have been complied with to the satisfaction of the Commission or such
authorities and to the reasonable satisfaction of Counsel for the
Underwriters; (v) the NASD, upon review of the terms of the public
offering of Shares, shall not have objected to such offering, such
terms, or the Underwriter's participation in the same; and (vi) after
the date hereof, no amendment or supplement to the Registration
Statement or the Prospectus shall have been filed without your prior
consent.
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23
(b) You shall not have advised the Company that the
Registration Statement or the Prospectus or any amendment thereof or
supplement thereto, in your reasonable judgment after conferring with
Counsel for the Underwriters, contains an untrue statement of a fact
which is material or omits to state a fact which is material and is
required to be stated therein or is necessary to make the statements
therein, in light of the circumstances, under which they were made, not
misleading.
(c) Between the time of the execution and delivery of this
Agreement and the Closing Time or the Option Exercise Time, as the case
may be, there shall be no litigation instituted against the Company,
the Subsidiaries or any of their officers or directors, and between
such dates there shall be no proceeding instituted or threatened
against the Company, the Subsidiaries or any of their officers or
directors, before or by any federal, state, county or local commission,
regulatory body, administrative agency or other governmental body,
domestic or foreign, in which litigation or proceeding an unfavorable
ruling, decision or finding would, in the judgment of the Underwriter,
have a Material Adverse Effect or would materially and adversely affect
the ability of the Company to perform its obligations under this
Agreement.
(d) Each of the representations and warranties of the Company
contained herein and in each certificate and document contemplated
under this Agreement to be delivered shall be true and correct at the
Closing Time and the Option Exercise Time as if made at the Closing
Time or the Option Exercise Time, as the case may be, and all covenants
and agreements contained herein, and in each such certificate and
document, to be performed on the part of the Company and all conditions
contained herein and in each such certificate and document to be
fulfilled or complied with by the Company at or prior to the Closing
Time or the Option Exercise Time, as the case may be, shall have been
duly performed, fulfilled or complied with.
(e) At the Closing Time and the Option Exercise Time, Counsel
for the Company shall furnish to you an opinion, in form and substance
reasonably satisfactory to you and Counsel for the Underwriters, dated
as of the date of its delivery, to the effect that:
(i) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Ohio. The Company has the power and authority
(corporate, governmental, regulatory and otherwise) and has or
will have all necessary Authorizations to own or lease all of
the assets owned or leased by it and to conduct its business
as described in the Registration Statement and the Prospectus,
except where the failure to have any Authorization would not
have a Material Adverse Effect. The Company is duly licensed
or qualified to do business and in good standing as a foreign
corporation in all jurisdictions (A) in which the nature of
the activities conducted by the Company requires such
qualification and (B) in which the Company owns or leases real
property, except where the failure to be so licensed or
qualified would not have a Material Adverse Effect.
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(ii) FNB is a bank duly authorized, validly existing and in
good standing under the laws of the United States. The deposit accounts
of FNB are insured up to applicable limits by the FDIC and no
proceedings for the termination or revocation of such insurance are
pending or, to the knowledge of Counsel for the Company, threatened.
FNB has the power and authority (corporate, governmental, regulatory
and otherwise) and has or will have all necessary Authorizations to own
or lease all of the assets owned or leased by it and to conduct its
business as described in the Registration Statement and the Prospectus,
except where the failure to have any Authorization would not have a
Material Adverse Effect. FNB is duly authorized or qualified to do
business and in good standing as a foreign corporation in all
jurisdictions (A) in which the nature of the activities conducted by
FNB requires such qualification and (B) in which FNB owns or leases
real property, except where the failure to be so licensed or qualified
would not have a Material Adverse Effect.
(iii) Bellbrook is a bank duly organized, validly existing and
in good standing under the laws of the State of Ohio. The deposit
accounts of Bellbrook are insured up to applicable limits by the FDIC
and no proceedings for the termination or revocation of such insurance
are pending or, to the knowledge of Counsel for the Company,
threatened. Bellbrook has the power and authority (corporate,
governmental, regulatory and otherwise) and has or will have all
necessary Authorizations to own or lease all of the assets owned or
leased by it and to conduct its business as described in the
Registration Statement and the Prospectus, except where the failure to
have any Authorization would not have a Material Adverse Effect.
Bellbrook is duly licensed or qualified to do business and in good
standing as a foreign corporation in all jurisdictions (A) in which the
nature of the activities conducted by Bellbrook requires such
qualification and (B) in which Bellbrook owns or leases real property,
except where the failure to be so licensed or qualified would not have
a Material Adverse Effect.
(iv) The Company has the corporate power and authority to
enter into this Agreement, to issue, sell and deliver to the
Underwriters the Shares to be issued and sold by it hereunder, and to
consummate any other transaction contemplated by this Agreement,
including, but not limited to, the acquisition.
(v) This Agreement and the issuance of the Shares pursuant
hereto have been duly authorized by all necessary corporate action on
the part of the Company. This Agreement has been duly executed and
delivered by the Company and, assuming due authorization, execution and
delivery by you, is a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles, except as rights to indemnity
and contribution hereunder may be limited by applicable law.
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(vi) To the knowledge of Counsel for the Company and except as
disclosed in the Prospectus, neither the Company nor any of the
Subsidiaries is in material violation of any rule or regulation of the
Federal Reserve, the Division, the OCC or the FDIC which might have a
Material Adverse Effect. To the knowledge of Counsel for the Company,
neither the Company nor any of the Subsidiaries is subject to any
written directive from the Federal Reserve, the Division, the OCC or
the FDIC to make any material change in the method of conducting its
business or affairs. Except as set forth in the Prospectus, there is
not pending or, to the knowledge of Counsel for the Company, threatened
any litigation, charge, investigation, action, suit or other proceeding
before or by any court, regulatory authority or governmental agency or
body which would affect the performance of the terms and conditions of
this Agreement or the consummation of the transactions contemplated
hereby or which would have a Material Adverse Effect.
(vii) The authorized capital stock of the Company is as set
forth in the Prospectus. The issued and outstanding Common Shares have
been duly authorized and validly issued, are fully paid and
nonassessable, and have not been issued in violation of any preemptive
right.
(viii) The issued and outstanding shares of capital stock of
the Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable and are owned by the Company free and
clear of any liens, charges, encumbrances or restrictions, except as
set forth in the Prospectus.
(ix) No holders of Common Shares or other securities of the
Company have registration rights with respect to securities of the
Company because of the filing or effectiveness of the Registration
Statement.
(x) The terms and provisions of the Common Share and the
Shares conform in all material respects to the description thereof
contained in the Registration Statement and the Prospectus, and the
forms of certificates evidencing the Common Shares and the Shares
comply with the Ohio General Corporation Law.
(xi) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated did not and will
not (A) violate or conflict with the respective Articles of
Incorporation, Articles of Association, Code of Regulations or Bylaws
of the Company or any of the Subsidiaries (B) violate, conflict with or
constitute a breach of, or a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under any
agreement, indenture or other instrument to which the Company or any of
the Subsidiaries is a party, (C) result in a breach or violation of any
of the terms and provisions of, or constitute a default (or give rise
to a state of facts which, with notice or lapse of time, or both, would
constitute a default) under or result in the creation or
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imposition of any lien, charge or encumbrance upon the assets or
properties of the Company or any of the Subsidiaries pursuant to any
indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, letter of credit agreement, bond, debenture, note agreement
or other evidence of indebtedness, lease, contract or other agreement
or instrument to which the Company or any of the Subsidiaries is a
party or by which the Company or any of the Subsidiaries or any of
their respective properties are bound, or (D) violate or conflict with
any governmental license or permit or any law, administrative
regulation or authorization, approval, court decree, injunction or
order; except such breaches, violations or defaults as would not have a
Material Adverse Effect; provided, however, that no opinion need be
rendered concerning state securities or blue sky laws.
(xii) The Registration Statement has become effective under
the Act and (A) no stop order suspending the effectiveness of the
Registration Statement has been issued, (B) no proceedings for that
purpose have been instituted or are pending or, to the knowledge of
Counsel for the Company, threatened under the Act, and (C) all filings
required by Rule 424 and, if applicable, Rule 430A, of the Rules and
Regulations have been made.
(xiii) Each of the Registration Statement and the Prospectus,
and each amendment or supplement thereto (other than the financial
statements, financial data and supporting schedules included in such
Registration Statement or Prospectus, as to which Counsel for the
Company need express no opinion), as of the effective date of the
Registration Statement, complied as to form with the requirements of
the Act and the applicable Rules and Regulations, and all written
decisions and orders of the Commission, as the case may be (except as
to information with respect to the Underwriter and except as to
financial statements, notes to financial statements, financial tables
and other financial and statistical data included therein, as to which
Counsel for the Company need express no opinion). The Company complies
with the conditions permitting its use of Form S-3.
(xiv) Each document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus, when so filed, complied as
to form, in all material respects, with the Exchange Act and the
applicable rules and regulations thereunder.
(xv) The description of contracts or other documents in the
Registration Statement and the Prospectus are accurate in all material
respects and fairly present the information required by the Act or the
Rules and Regulations to be presented. To the knowledge of Counsel for
the Company, there are no contracts or other documents of a character
required to be described or referred to in the Registration Statement
or Prospectus or to be filed as an exhibit to the Registration
Statement that are not described or referred to therein and filed as
required.
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(xvi) Upon the issuance of the Shares, the authorized, issued
and outstanding equity capital of the Company shall be as set forth in
the Prospectus under the caption "CAPITALIZATION," adjusted to give
effect to the actual sale of the Shares and the consummation of the
Acquisition. The offer, sale and issuance of the Shares have been duly
and validly authorized by all necessary action of the Company. The
Shares to be issued by the Company pursuant to the terms of this
Agreement will be, upon issuance and delivery against payment therefor
in accordance with the terms hereof, duly and validly issued, fully
paid and nonassessable and not issued in violation of any preemptive
right. The purchasers of the Shares will acquire good title thereto,
free and clear of any material lien, claim, security interest or other
encumbrance or other defect in title (except restrictions on transfer
under applicable law and except such claims as may be asserted against
the purchasers thereof by third party claimants). Except as otherwise
set forth in Ohio or federal law or the Articles of Incorporation or
Code of Regulations of the Company, there will be no restrictions upon
the voting of the Shares.
(xvii) The terms and provisions of the Shares conform in all
material respects with the description thereof contained in the
Registration Statement and the Prospectus, and the certificates
evidencing the Shares conform in all material respects with the
requirements of applicable laws and regulations.
(xviii) No authorization, approval or consent of any
governmental, regulatory, supervisory or other public authority is
required in connection with the execution and delivery of this
Agreement or the issuance and sale of the Shares, except such as have
been obtained under the Act, the Exchange Act or other applicable laws,
in such as may be required under state or other securities or blue sky
laws.
(xix) Neither the Company nor any of the Subsidiaries is an
"investment company" as defined in Section 3(a) of the Investment
Company Act and, if the Company or the Subsidiaries conduct their
respective businesses as set forth in the Registration Statement and
the Prospectus, none will become an "investment company" or be required
to register under the Investment Company Act.
(xx) All issuances and sales by the Company of its securities
during the past three years were either (A) registered under the Act or
(B) exempt from registration under the Act and, to the knowledge of
Counsel for the Company, otherwise complied in all respects with the
provisions of all applicable federal and state securities laws.
(xxi) At March 27, 1996, and the date hereof, the Company had
and has the corporate power and authority to enter into the Acquisition
Agreement, to purchase all of the common shares of County and to
consummate any other transactions contemplated by the Acquisition
Agreement.
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(xxii) The Acquisition Agreement and the purchase of the
common shares of County have been duly authorized by all necessary
corporate action on the part of the Company. The Acquisition Agreement
has been duly executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(xxiii) The execution and delivery of the Acquisition
Agreement and the consummation of the transactions therein contemplated
did not and will not violate or conflict with the Articles of
Incorporation, Articles of Association, Code of Regulations or Bylaws
of the Company, FNB or Bellbrook, (B) violate, conflict with or
constitute a breach of, or a default (or an event which, with notice or
lapse of time or both, would constitute a default) under any agreement,
indenture, or other instrument to which the Company, FNB or Bellbrook
is a party, (C) result in a breach or violation of the terms and
provisions of, or constitute a default (or give rise to a state of
facts which, with notice or lapse of time or both, would constitute a
default) under or result in the creation or imposition of any lien,
charge or encumbrance upon the assets or properties of the Company, FNB
or Bellbrook, pursuant to any indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, letter of credit agreement, or
other agreement or instrument to which the Company, FNB or Bellbrook is
a party or by which the Company, FNB or Bellbrook or any of their
respective properties are bound, or (D) violate or conflict with any
government license or permit or any law, administrative regulation or
authorization, approval, court decree, injunction or order; except such
breaches, violations or defaults as would not have a Material Adverse
Effect.
(xxiv) There is not pending, nor, to the knowledge of Counsel
for the Company , threatened, any litigation, charge, investigation,
action, suit or other proceeding before or by any court regulatory
authority or governmental agency or body which would affect the
performance of the terms and conditions of the Acquisition Agreement or
the consummation of the transactions contemplated thereby.
(xxv) All necessary regulatory approvals that are required to
have been obtained by the Company, FFG and County have been obtained in
connection with the transactions contemplated by the Acquisition
Agreement and (A) no orders suspending such approvals have been issued,
and (B) no proceedings for that purpose have been instituted or are
pending, or, to the knowledge of Counsel for the Company, are
threatened.
In addition, Counsel for the Company shall confirm that
although they have not verified the accuracy or completeness of the
statements contained in the Registration
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Statement or the Prospectus or the documents incorporated by reference
therein, based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendments or
supplements thereto and upon their discussions with officers and
representatives of and the independent public accountants for the
Company, nothing has come to the attention of Counsel for the Company
which caused them to believe that, at the time the Registration
Statement became effective, the Registration Statement (except as to
financial statements, the financial data and supporting schedules
contained in such Registration Statement and Prospectus, as to which
such counsel need express no belief) contained any untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or the Prospectus or any document filed pursuant to the
Exchange Act and incorporated by reference therein (except as
aforesaid), as of date of the Prospectus and as of the Closing Time or
the Option Exercise Time, as the case may be, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
In rendering the opinions and confirmations set forth above, Counsel
for the Company may rely (as to matters of fact) upon certificates of
responsible officers of the Company and the Subsidiaries and of the
transfer agent and certificates of public officials, provided copies of
such certificates are delivered to the Underwriters.
(f) Concurrently with the execution and delivery of this
Agreement and at the Closing Time and at the Option Exercise Time, the
Company's accountants shall have furnished to you a letter, dated as of
the date of its delivery, addressed to you and in form and substance
reasonably satisfactory to you, to the effect that:
(i) Such accountants are independent certified public
accountants with respect to the Company as required by the Act
and the Rules and Regulations, and the answer to Item 10 of
the Registration Statement is correct insofar as it relates to
them.
(ii) In their opinion, the financial statements and
schedules and notes examined by them and included in the
Registration Statement and the Prospectus comply as to form in
all material respects with the applicable accounting
requirements of the Act and the Rules and Regulations with
respect to registration statements on Form S-3.
(iii) On the basis of inquiries and procedures
conducted by them, including a reading of the latest available
unaudited interim financial statements of the Company,
inquiries of officials of the Company and the Subsidiaries
responsible for operational, financial and accounting matters,
a reading of the minute books of the Company and the
Subsidiaries, a reading of the latest available interim
unaudited consolidated financial statements of the Company and
the Subsidiaries (with an indication of the date thereof) and
other specified procedures and
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inquiries, nothing has come to their attention that caused them to
believe that (A) the historical amounts in "SUMMARY CONDENSED
CONSOLIDATED HISTORICAL FINANCIAL AND OPERATING DATA OF THE COMPANY,"
"SUMMARY UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL AND
OPERATING DATA OF THE COMPANY," "SELECTED CONSOLIDATED FINANCIAL DATA
OF THE COMPANY" AND "UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL
STATEMENTS" included in the Registration Statement do not agree with or
are not derivable from corresponding amounts in the consolidated
financial statements from which such amounts were derived; (B) the
unaudited financial statements of the Company set forth in the
Registration Statement and the Prospectus or incorporated by reference
therein do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Rules and
Regulations or are not fairly presented in conformity with generally
accepted accounting principles applied on a basis consistent with that
of the audited financial statements; and (C) during the period April 1,
1996, to a specified date no more than five days prior to the date
thereof, in the case of the first letter, and not more than two
business days prior to the date thereof, in the case of any subsequent
letters, there was any change in the capital stock or debt (other than
normal payments) of the Company and the Subsidiaries on a consolidated
basis, or any decrease in the shareholders' equity of the Company and
the Subsidiaries on a consolidated basis, each as compared with the
amounts shown in the balance sheet as of March 31, 1996, included in
the Registration Statement or incorporated by reference therein or any
decrease from March 31, 1996, to the specified date, on a proportional
basis with the corresponding period for the preceding year, in
revenues, net income and net income per share of the Company and the
Subsidiaries on a consolidated basis, except in all instances for
changes, decreases or increases which the Registration Statement and
the Prospectus disclose have occurred or may occur and except for such
other changes, decreases or increases which you shall in your sole
discretion accept.
(iv) In addition to their examination referred to in
their reports included in the Registration Statement and the
Prospectus and the inquiries and limited procedures referred
to in clause (iii) above, they have performed other
procedures, not constituting an audit, with respect to certain
numerical data and financial information appearing in the
Registration Statement and the Prospectus, requested by you
and specified in such letter and have compared such data and
information with the accounting records of the Company and
found them to be in agreement.
(g) Concurrently with the execution and delivery of this
Agreement and at the Closing Time and at the Option Exercise Time,
County's accountants shall have furnished to you a letter, dated as of
the date of its delivery, addressed to you and in form and substance
reasonably satisfactory to you, to the effect that:
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(i) Such accountants are independent certified public
accountants with respect to County as required by the Act and
the Rules and Regulations, and the answer to Item 10 of the
Registration Statement is correct insofar as it relates to
them.
(ii) In their opinion, the financial statements and
schedules and notes examined by them and included in the
Registration Statement and the Prospectus comply as to form in
all material respects with the applicable accounting
requirements of the Act and the Rules and Regulations with
respect to registration statements on Form S-3.
(iii) On the basis of inquiries and procedures
conducted by them, including a reading of the latest available
unaudited interim financial statements of County, inquiries of
officials of County responsible for operational, financial and
accounting matters, a reading of the minute books of County, a
reading of the latest available interim unaudited consolidated
financial statements of County (with an indication of the date
thereof) and other specified procedures and inquiries, nothing
has come to their attention that caused them to believe that
(A) the historical amounts in "SUMMARY CONDENSED CONSOLIDATED
HISTORICAL FINANCIAL AND OPERATING DATA OF COUNTY," "SUMMARY
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL AND
OPERATING DATA OF COUNTY," "SELECTED CONSOLIDATED FINANCIAL
DATA OF COUNTY" AND "UNAUDITED PRO FORMA CONSOLIDATED
FINANCIAL STATEMENTS" included in the Registration Statement
do not agree with or are not derivable from corresponding
amounts in the consolidated financial statements from which
such amounts were derived; (B) the unaudited financial
statements of County set forth in the Registration Statement
and the Prospectus or incorporated by reference therein do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Rules and
Regulations or are not fairly presented in conformity with
generally accepted accounting principles applied on a basis
consistent with that of the audited financial statements; and
(C) during the period April 1, 1996, to a specified date no
more than five days prior to the date thereof, in the case of
the first letter, and not more than two business days prior to
the date thereof, in the case of any subsequent letters, there
was any change in the capital stock or debt (other than normal
payments) of County and the Subsidiaries on a consolidated
basis, or any decrease in the shareholders' equity of County
on a consolidated basis, each as compared with the amounts
shown in the balance sheet as of March 31, 1996, included in
the Registration Statement or incorporated by reference
therein or any decrease from March 31, 1996, to the specified
date, on a proportional basis with the corresponding period
for the preceding year, in revenues, net income and net income
per share of County on a consolidated basis, except in all
instances for changes, decreases or increases which the
Registration Statement and the Prospectus disclose have
occurred or may occur and except for such other changes,
decreases or increases which you shall in your sole discretion
accept.
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32
(iv) In addition to their examination referred to in
their reports included in the Registration Statement and the
Prospectus and the inquiries and limited procedures referred
to in clause (iii) above, they have performed other
procedures, not constituting an audit, with respect to certain
numerical data and financial information appearing in the
Registration Statement and the Prospectus, requested by you
and specified in such letter and have compared such data and
information with the accounting records of the County and
found them to be in agreement.
(h) At the Closing Time and at the Option Exercise Time, there
shall be furnished to you, on behalf of the Company, a certificate,
dated the date of its delivery, signed by both the chief executive
officer and the chief financial officer of the Company, in form and
substance reasonably satisfactory to you, to the effect that:
(i) Each signer of such certificate has carefully
examined the Registration Statement and the Prospectus and the
documents incorporated by reference therein and (A) to his
knowledge, as of the date of such certificate and as of the
Effective Date, the statements in the Registration Statement
and the Prospectus and the documents incorporated by reference
therein are and were true and correct in all material
respects, and neither the Registration Statement nor the
Prospectus nor such document incorporated by reference omits
to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading;
(B) since the Effective Date, no event has occurred of which
he has knowledge and which was required by the Act or the
Rules and Regulations to be set forth in a supplement to or
amendment of the Prospectus but which has not been so set
forth; and (C) since the dates as of which and the periods for
which information is given in the Registration Statement and
the Prospectus, there has not been to his knowledge any change
which would have a Material Adverse Effect, other than changes
which the Registration Statement and the Prospectus
specifically disclose have occurred or may occur subsequent to
the Effective Date.
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceedings
for such purpose have been commenced or are, to the knowledge
of each signer of such certificate, threatened or contemplated
by the Commission.
(iii) The Company has not received notice that any
stop order suspending the qualification by registration of any
of the Shares under the blue sky laws of any jurisdiction has
been issued, or that any proceedings for such purpose have
been commenced, and, to the knowledge of each signer of such
certificate, no such proceedings are threatened or
contemplated by any jurisdiction.
(iv) Each of the representations and warranties of
the Company contained in this Agreement and in each
certificate and document contemplated under this
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33
Agreement to be delivered to you was, when originally made and
is, at the time such certificate is dated, true and correct.
(v) Each of the covenants required herein to be
performed by the Company on or prior to the date of such
certificate has been duly, timely and fully performed and each
condition herein required to be complied with by the Company
on or prior to the date of such certificate has been duly,
timely and fully complied with by the Company.
(i) [Reserved]
(j) At the Closing Time and at the Option Exercise Time, there
shall be furnished to you, on behalf of the Company, a certificate,
dated the date of its delivery, signed by both the chief executive
officer and the chief financial officer of County, in form and
substance reasonably satisfactory to you, to the effect that each
signer of such certificate has carefully examined the Registration
Statement and the Prospectus and the documents incorporated by
reference therein and (A) to his knowledge, as of the date of such
certificate and as of the Effective Date, the statements in the
Registration Statement and the Prospectus and the documents
incorporated by reference therein are and were true and correct in all
material respects, and neither the Registration Statement nor the
Prospectus nor such document incorporated by reference omits to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading; (B) since the Effective Date, no event
has occurred of which he has knowledge and which was required by the
Act or the Rules and Regulations to be set forth in a supplement to or
amendment of the Prospectus but which has not been so set forth; and
(C) since the dates as of which and the periods for which information
is given in the Registration Statement and the Prospectus, there has
not been to his knowledge any change which would have a Material
Adverse Effect, other than changes which the Registration Statement and
the Prospectus specifically disclose have occurred or may occur
subsequent to the Effective Date.
(k) The Company shall have furnished to you such certificates,
in addition to those specifically mentioned herein, as you may have
reasonably requested in a timely manner as to (i) the accuracy and
completeness, at the Closing Time and the Option Exercise Time, of any
statement in the Registration Statement or the Prospectus, (ii) the
accuracy, at the Closing Time and the Option Exercise Time, of the
representations and warranties of the Company herein and in each
certificate and document contemplated under this Agreement to be
delivered to you, (iii) the performance by the Company of its
obligations hereunder and under each such certificate and document, and
(iv) the fulfillment of the conditions concurrent and precedent to your
obligations hereunder.
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(l) The executive officers and directors of the Company shall
have entered into agreements with the Underwriters and the Company to
the effect that they will not sell, contract to sell or otherwise
dispose of any Common Shares or any securities convertible into Common
Shares for a period of 180 days after the Effective Date, except Common
Shares held in trust by the Company's trust department, without the
prior written consent of the Company and the Underwriters.
(m) Except as contemplated by the Registration Statement and
the Prospectus, since the date hereof there shall not have been any
change in the capitalization of the Company or any change which would
have a Material Adverse Effect, arising for any reason whatsoever.
(n) All corporate proceedings and other legal matters relating
to the sale and transfer of the Shares, this Agreement, the
Registration Statement, the Prospectus and other related matters shall
be reasonably satisfactory in all material respects to Counsel for the
Underwriters, who shall have furnished to you, at the Closing Time and
Option Exercise Time, such opinion, in form and substance reasonably
satisfactory to you, with respect to the sufficiency of the
aforementioned corporate proceedings and other legal matters as you may
reasonably require.
(o) Counsel for the Underwriters shall have been furnished
such documents as they reasonably may require for the purpose of
enabling them to review or pass upon the matters required by the
Underwriters and for the purpose of evidencing the accuracy,
completeness or satisfaction of any of the representations, warranties
or conditions herein contained, including, but not limited to,
resolutions of the Board of Directors of the Company regarding the
authorization of this Agreement and the transactions contemplated
hereby.
(p) Prior to and at the Closing Time and the Option Exercise
Time, in the reasonable opinion of the Underwriters: (i) there shall
have been no material adverse change in the financial or other
condition of the Company and the Subsidiaries, taken as a whole, from
that as of the latest date as of which such condition is set forth in
the Prospectus; (ii) there shall have been no material transaction
entered into by the Company or the Subsidiaries from the latest date as
of which the financial condition of the Company or the Subsidiaries is
set forth in the Prospectus, other than transactions referred to or
contemplated therein and transactions in the ordinary course of
business; (iii) neither the Company nor any of the Subsidiaries shall
have received from the Federal Reserve, the Division, the OCC or the
FDIC any direction (oral or written) to make any material change in the
method of conducting their respective businesses which would have a
Material Adverse Effect; (iv) no action, suit or other proceeding, at
law or in equity, or before or by any federal or state commission,
board or other administrative agency, or before any arbitrator or
arbitrators, shall be pending or threatened against the Company or the
Subsidiaries or affecting any of their respective assets wherein an
unfavorable decision, ruling or finding would have a Material Adverse
Effect (provided that for this Section 8(p), the Underwriters shall not
regard any proceeding to be "threatened" unless a
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potential party has manifested to the management of the Company or the
Subsidiaries or to Counsel for the Company a present intention to
initiate a proceeding); and (v) the Shares shall have been qualified or
registered for offering and sale (or exempt from such requirements) by
the Company under the securities or blue sky laws of each jurisdiction
upon which the Underwriters and the Company shall have agreed.
(q) As of the date hereof, the Closing Time and the Option
Exercise Time, the Acquisition Agreement will be in full force and
effect; neither the Company nor FFG will have committed an act which
constitutes a breach of, or default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, any
provision of the Acquisition Agreement, which has not been remedied by
the breaching party; and the Company will not have received a
supplement to the Disclosure Letter which discloses a ground for
termination of the Acquisition Agreement.
(r) The Company, FFG and County shall have received all
necessary approvals from all applicable regulatory and supervisory
bodies, to consummate the transactions contemplated by the Acquisition
Agreement; at, or prior to the Closing Time or the Option Exercise
Time, as the case may be, no order suspending the approvals of the
transactions contemplated by the Acquisition Agreement, which have not
been satisfied, shall have been received by the Company, FFG or County.
All of the opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to Counsel for the Underwriters. You reserve the right to waive any condition
hereinabove set forth. If any condition of the Underwriter's obligations
hereunder to be satisfied prior to the Closing Time or the Option Exercise Time
is not so satisfied, this Agreement may be terminated by you prior to the
Closing Time or the Option Exercise Time, as applicable, by notice in writing or
by telegram confirmed in writing to the Company.
9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities or
actions, joint or several (including any investigation, legal or other
expense reasonably incurred in connection with, and any amount paid in
settlement of, any commenced or threatened action, suit or proceeding
or any claim asserted), to which an Underwriter or such controlling
person may become subject under the Act, the Exchange Act or otherwise,
but only insofar as such losses, claims, damages, liabilities or
actions arise out of, or are based upon:
(i) any misrepresentation by the Company in this
Agreement, including, but not limited to, the breach of, or
any inaccuracy in, the representations and warranties of the
Company contained in this Agreement or any certificate or
other
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document contemplated by this Agreement or any failure of the
Company to perform its obligations and covenants under this
Agreement; or
(ii) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement,
any Preliminary Prospectus, the Prospectus, any document
incorporated by reference therein or any amendment thereof or
supplement thereto or in any application or other document
executed by the Company based upon written information
furnished by or on behalf of the Company and filed in any
jurisdiction in order to register or qualify the Shares under
the securities laws thereof or filed with the Commission, or
the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that
the indemnity agreement contained in this Section 9(a) shall
not extend to an Underwriter in respect of any such losses,
claims, damages, liabilities or actions arising out of, or
based upon, any such untrue statement or alleged untrue
statement or any such omission or alleged omission, if such
statement or omission was made in reliance upon information
furnished in writing to the Company through you or on behalf
of you specifically for use in connection with the preparation
of the Registration Statement, any Preliminary Prospectus or
the Prospectus or any amendment thereof or supplement thereto
and, provided further, that the indemnity agreement provided
in this Section 9(a) with respect to any Preliminary
Prospectus shall not inure to the benefit of an Underwriter
from whom the person asserting any losses, claims, damages,
liabilities or actions based upon any untrue statement or
alleged untrue statement of material fact or omission or
alleged omission to state therein a material fact purchased
Shares, if a copy of the Prospectus in which such untrue
statement or alleged untrue statement or omission or alleged
omission was corrected has not been sent or given to such
person within the time required by the Act and the Rules and
Regulations thereunder, unless such failure is the result of
noncompliance by the Company with Section 5(a) hereof. The
Company agrees to pay any legal and other expenses for which
it is liable under this subsection (a) from time to time (but
not more frequently than monthly) within 30 days after its
receipt of a bill therefor.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company, its directors, its officers
who shall have signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act (i) to the same extent as the
foregoing indemnity from the Company to such Underwriter, but in each
case to the extent, and only to the extent, that any statement in or
omission from or alleged omission from the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto was made in reliance upon information furnished in writing to
the Company by such Underwriter specifically for use in connection with
the preparation of the Registration Statement, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto,
and (ii) to the extent any such loss, claim,
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damage, liability or action arises out of, or is based upon, a failure
or alleged failure of the Underwriter to deliver the Prospectus as
required by applicable laws. Each Underwriter agrees to pay any legal
and other expenses for which it is liable under this subsection (c)
from time to time (but not more frequently than monthly) within 30 days
after receipt of a bill therefor.
(c) If any action is brought against a person entitled to
indemnification pursuant to the foregoing subsection (a) or (b) (an
"indemnified party") in respect of which indemnity may be sought
against a person granting indemnification (an "indemnifying party")
pursuant to such subsections, such indemnified party shall promptly
notify such indemnifying party in writing of the commencement thereof;
provided, however, that the omission so to notify the indemnifying
party of any such action shall not release the indemnifying party from
any liability it may have to such indemnified party otherwise than on
account of the indemnity agreement contained in subsection (a) or (b)
of this Section 9. In case any such action is brought against an
indemnified party and the indemnified party notifies an indemnifying
party of the commencement thereof, the indemnifying party against which
a claim is to be made will be entitled to participate therein at its
own expense and, to the extent that it may wish, to assume at its own
expense the defense thereof, with counsel reasonably satisfactory to
such indemnified party; provided, however, that (i) if the defendants
in any such action include both the indemnified party, and the
indemnifying party and the indemnified party shall have reasonably
concluded based upon the written advice of counsel that there may be
legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying
party, the indemnified party shall have the right to select separate
counsel reasonably satisfactory to the indemnifying party to assume
such legal defenses and otherwise to participate in the defense of such
action on behalf of such indemnified party or parties; and (ii) in any
event, the indemnified party shall be entitled to have counsel chosen
by such indemnified party participate in, but not conduct, the defense.
Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 9 for
any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless (A) the indemnified
party shall have employed such counsel in connection with the
assumption of legal defenses in accordance with proviso (i) to the next
preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate
counsel); (B) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement
of the action; or (C) the indemnifying party has authorized in writing
the employment of counsel for the indemnified party at the expense of
the indemnifying party. An indemnifying party shall not be liable for
any settlement of any action or proceeding effected without its written
consent.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in
subsection (a) or (b) of this Section 9 is
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unavailable in accordance with its terms, the Company and, subject to
the limitations set forth below, the Underwriters shall contribute to
the aggregate losses, claims, damages and liabilities, of the nature
contemplated by said indemnity agreement (including any investigation,
legal and other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered any contribution received by such
party from persons, other than the Underwriters, who may also be liable
for contribution, including persons who control the Company within the
meaning of the Act, officers of the Company who signed the Registration
Statement and directors of the Company incurred by the Company and the
Underwriters) in such proportions as are applicable to reflect the
relative benefits received by the Company, on the one hand, and the
Underwriter, on the other hand, from the offering of Shares; provided,
however, that if such allocation is not permitted by applicable law or
if the indemnified party failed to give the notice required under
subsection (c) of this Section 9, then the relative fault of the
Company, on the one hand, and the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such
losses, claims, damages and liabilities and other relevant equitable
considerations will be considered together with such relative benefits.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, shall be deemed to be in such
proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bears to the total
underwriting discount received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus and in the notes
thereto. The relative fault of the Company, on the one hand, and of the
Underwriters, on the other, shall be determined by reference to, among
other things, whether in the case of an untrue statement or alleged
untrue statement of a material fact or the omission or alleged omission
to state a material fact, such statement or omission relates to
information supplied by the Company, or by the Underwriter, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were
determined by pro-rate allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in this subsection (d). The amount paid or payable by the indemnified
party as a result of the losses, claims, damages or liabilities
referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending against or appearing as a
third party witness in any such action or claim. Notwithstanding the
provisions of this subsection (d), (i) no Underwriter shall be required
to contribute any amount in excess of the amount by which the total
price at which the Shares purchased by it were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and (ii) no person guilty of
fraudulent misrepresentation within the meaning of Section 11(f) of the
Act shall be entitled to contribution from any person who is not guilty
of such fraudulent misrepresentation. For purposes of this subsection
(d), each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act
shall have the same rights to
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contribution as the Underwriter. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action,
suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this
Section 9(d), notify such party or parties from whom contribution may
be sought, but the omission to so notify such party or parties shall
not relieve the party or parties from whom contribution may be sought
or they may have under this Section 9(d) or otherwise. No party shall
be liable for contribution for any settlement of any action or claim
effected without its written consent.
(e) The respective indemnity and contribution agreements by
the Underwriters and the Company contained in subsections (a), (b), (c)
and (d) of this Section 9, and the respective covenants,
representations and warranties of the Company in Sections 3, 4, 5, 6,
and 7 hereof shall remain operative and in full force and effect
regardless of (i) any investigation made by the Underwriters, on its
behalf or by or on behalf of any person who controls the Underwriters,
of the Company or any controlling person of the Company or any director
or officer of the Company, (ii) acceptance of any of the Shares and
payment therefor, or (iii) (with respect to Section 7 and this Section
9 only) any termination of this Agreement, and shall survive the
delivery of the Shares, and any successor of the Underwriters or the
Company, or of any person who controls the Underwriters or the Company,
as the case may be, shall be entitled to the benefit of such respective
indemnity and contribution agreements. The respective indemnity and
contribution agreements by the Underwriters and the Company contained
in subsections (a), (b) and (c) of this Section 9 shall be in addition
to any liability which the Underwriters and the Company may otherwise
have to the other.
10. Termination. This Agreement (except for the provisions of Sections
7 and 9 hereof) may be terminated by you, by notice to the Company on or after
the Effective Date and prior to the Closing Time or the Option Exercise Time, if
at any time during that period any of the following has occurred:
(a) Any of the conditions specified in Section 8 hereof shall
not have been fulfilled when and as required by this Agreement to be
fulfilled or any of the covenants, representations or warranties
contained herein or in any certificate or document contemplated under
this Agreement to be delivered to you shall not have been satisfied or
fulfilled within the respective times herein provided for, unless
compliance therewith or performance or satisfaction thereof shall have
been expressly waived by you in writing;
(b) Except as disclosed in or contemplated by the Prospectus,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change
or any development involving a prospective material adverse change in
or affecting the condition (financial or otherwise) assets, business,
properties, prospects or results of operations of the Company and the
Subsidiaries taken as a whole, whether or not arising in the ordinary
course of business;
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(c) Any outbreak of hostilities or escalation in existing
hostilities anywhere in the world or other national or international
calamity or crisis or change in economic or political conditions, if
the effect of such outbreak, escalation, calamity, crisis or change on
the financial markets in the United States would, in your reasonable
judgment, make it impracticable to offer for sale or to enforce
contracts made by the Underwriter for the resale of the Shares agreed
to be purchased hereunder;
(d) Any general suspension of trading in securities on the New
York Stock Exchange or the American Stock Exchange or The Nasdaq Stock
Market or any general limitation on prices for such trading or any
general restrictions on the distribution of securities, all to such a
degree as would, in your reasonable judgment, materially adversely
affect the market for the Shares, or
(e) A banking moratorium shall have been declared by federal,
Ohio or New York State authorities.
In addition you may terminate this Agreement by giving notice of a material
breach by the Company of this Agreement at any time after this Agreement becomes
effective. This Agreement may also be terminated as provided in Section 8,
however, certain terminations of this Agreement require payments by the Company
to the Underwriters as provided in Section 7.
11. Notice. Except as otherwise expressly provided in this Agreement,
(a) whenever advice or a notice, objection, designation, request or report is
given or is required by the provisions of this Agreement to be given to the
Company, such advice, notice, objection, designation, request or report shall be
in writing or by telegraph confirmed in writing, addressed to the Company and
delivered to BancFirst Ohio Corp., 422 Main Street, Zanesville, Ohio 43701-3515,
Attention: Gary N. Fields, with a copy to Emens, Kegler, Brown, Hill & Ritter,
Capitol Square, Suite 1800, 65 East State Street, Columbus, Ohio 43215-4294,
Attention: John R. Thomas; and (b) whenever advice or a notice, objection,
designation, request or report is given or is required by the provisions of this
Agreement to be given to you, such advice, notice, objection, designation,
request or report shall be in writing, addressed to McDonald & Company
Securities, Inc., Suite 2100, 800 Superior Avenue, Cleveland, Ohio 44114-2603,
Attention: Charles R. Crowley, with a copy to Vorys, Sater, Seymour and Pease,
Suite 2100, Atrium Two, 221 East Fourth Street, Cincinnati, Ohio 45202,
Attention: Terri Reyering Abare, Esq., or at such other address as a party
hereto may give notice in accordance herewith.
12. Survival of Agreements, Representations and Indemnities. The
respective indemnities and contribution agreements of the Company and the
Underwriters, the representation and warranties of the Company and the
agreements in Sections 7, 9 and 10 set forth in or made pursuant to this
Agreement shall remain in full force and effect, regardless of any termination
or cancellation of this Agreement or any investigation made by or on behalf of
the Underwriters or the Company or any controlling person or indemnified party
referred to in Section 9 of this
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Agreement, and shall survive any termination of this Agreement and/or the
delivery of and payment for the Shares.
13. Miscellaneous.
(a) This Agreement is made solely for the benefit of the
Underwriters, the Company, the Company's directors, the Company's
officers who shall have signed the Registration Statement and any
controlling person referred to in Section 9 hereof, and their
respective successors and assigns, and no other person, partnership,
association or corporation shall acquire or have any right under or by
virtue of this Agreement. The term "successor" or the term "successors
and assigns" as used in this Agreement shall not include any buyer, as
such, of any of the Shares from the Underwriters. All of the
obligations of the Underwriters hereunder are several and not joint.
(b) The information in the Prospectus under the caption
"UNDERWRITING" shall constitute the only information furnished in
writing by or on behalf of the Underwriters for use in connection with
the preparation of the Registration Statement as originally filed or in
any amendment thereto, any Preliminary Prospectus or the Prospectus as
the case may be.
(c) This Agreement shall supersede any agreement or
understanding, oral or in writing, express or implied, between the
Company and you relating to the sale of any of the Shares.
(d) No change, amendment or supplement to, or waiver of, this
Agreement or any term, provision or condition contained herein, shall
be valid or of any effect unless in writing and signed by the party
against whom such is asserted.
(e) This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio applicable to contracts
made and to be performed therein without giving effect to the
principles of conflicts of law thereof.
(f) This Agreement may be signed in two or more counterparts
with the same effect as if the signatures to each counterpart were upon
a single instrument, and all such counterparts together shall be deemed
an original of this Agreement.
(g) In the event that any term, provision or covenant of this
Agreement or the application thereof to any circumstance or situation
shall be invalid or unenforceable, in whole or in part, the remainder
hereof and the application of such term, provision or covenant to any
other circumstance or situation shall not be affected thereby, and each
term, provision or covenant of this Agreement shall be valid and
enforceable to the full extent permitted by law.
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(h) This Agreement will inure solely to the benefit of and be
binding upon the parties hereto and the officers and directors and
controlling persons referred to in Section 9 hereof and their
respective successors, assigns, heirs, executors and administrators,
and no other persons will have any right or obligation hereunder.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed copies hereof, whereupon it
will be a binding agreement by and between the Company and you in accordance
with its term.
Very truly yours,
BANCFIRST OHIO CORP.
By: ___________________________
Gary N. Fields, President
Accepted as of the date
first above written:
McDONALD & COMPANY SECURITIES, INC.
By:______________________________________
Charles R. Crowley, Managing Director
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