EXHIBIT 1
FIRST SECURITY BANCORP INC.
COMMON STOCK
1,000,000 Shares of Common Stock
SALES AGENCY AGREEMENT
September ___, 2000
Winebrenner Capital Partners, LLC
2300 Greene Way, Suite 200
Louisville, KY 40220-4009
Gentlemen:
The undersigned, First Security Bancorp, Inc., a bank holding
corporation (the "Corporation"), appoints Winebrenner Capital Partners, LLC as
the exclusive selling agent during the term hereof (the "Sales Agent"), on a
best efforts basis, of the shares of the Corporation described below and hereby
confirms its agreements (this "Agreement") with the Sales Agent as follows:
1. Description of the Shares. The Corporation proposes to issue and
sell as many as 1,000,000 shares of Common Stock, no par value per share (the
"Shares"). The terms of the offering are more fully described in the Prospectus
referred to below.
2. Representations, Warranties and Covenants of the Corporation.
The Corporation represents and warrants to, and agrees with, the Sales Agent
that:
(a) No action, suit or proceeding for the purpose of
preventing or suspending the use of the Prospectus has been initiated
or, to the knowledge of the management of the Corporation, threatened
by any governmental agency or body nor has any such agency or body
notified the Corporation of any objections to the use of the Prospectus
.
(b) As of the date hereof and at all times subsequent thereto
up to and at the Closing Date (as hereinafter defined): (i) the
Prospectus and any amendments or supplements thereto will be part of a
registration statement respecting the Shares filed by the Corporation
with the Securities and Exchange Commission ("SEC") in conformity with
the requirements of the Securities Act of 1933 and the rules and
regulations of the SEC promulgated thereunder and in conformity with
the requirements of any other applicable governmental agency or body
having jurisdiction over the offering, and (ii) neither the Prospectus
nor any amendment or supplement thereto will include any untrue
statement of a material fact or omit to state any 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, provided, however, that the foregoing representations and
warranties shall not apply to information contained in or omitted from
the Prospectus or any such amendment or supplement in reliance upon,
and in conformity with, written information furnished to the
Corporation by the Sales Agent specifically for use in the preparation
thereof.
(c) The Corporation is duly organized and validly existing and
in good standing under the laws of Kentucky and has full power and
authority (corporate and other) to conduct its business as described in
the Prospectus. The Corporation has all such power, authority,
authorizations, approvals, orders, licenses, certificates and permits
necessary to enter into this Agreement, to carry out the provisions and
conditions hereof and to commence the offering. The Corporation does
not have any properties and does not conduct any business outside of
the Commonwealth of Kentucky, which would require it to be qualified in
any jurisdiction outside of Kentucky. This Agreement has been duly and
validly authorized, executed and delivered by the Corporation and is a
valid and binding agreement and obligation of the Corporation.
(d) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the
Prospectus, the Corporation has not incurred any liabilities or
obligations, direct or contingent, other than in connection with
banking transactions in the ordinary course of business or entered into
any transactions which are material to the Corporation and there has
not been any material change in the capital stock, short-term debt or
long-term debt of the Corporation, or any material adverse change, or,
to the knowledge of the management of the Corporation, any development
reasonably likely to result in a material adverse change, in the
conditions (financial or other), net worth or results of operations of
the Corporation.
(e) The Corporation has conducted its business so as to comply
in all material respects with applicable statutes, rules, regulations,
decisions, directives and orders (including without limitation, all
rules, regulations, decisions, directives or orders of the Kentucky
Department of Financial Institutions ("KDFI"), the Federal Deposit
Insurance Corporation ("FDIC") or the Board of Governors of the Federal
Reserve System ("FED"), and there is not pending or, to the knowledge
of the management of the Corporation, threatened, any action, suit or
proceeding , to which the Corporation is or may be a party, before or
by any court or governmental agency or body, which can reasonably be
expected to result in any material adverse change in the condition
(financial or other), business, prospects, net worth or results of
operations of the Corporation or can reasonably be expected to
materially and adversely affect the properties or assets thereof.
(f) The Corporation is not in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any agreement, instrument, or understanding ("Existing
Agreements") to which it is a party or by which it or any of its
properties may be bound and which default is of material significance
in respect to the business or financial condition of the Corporation,
nor is the Corporation in violation of any material term or provision
of its Articles of Incorporation or Bylaws. The execution and delivery
of this Agreement and the incurrence of the obligations herein set
forth will not conflict with, or constitute a breach of or default
under, the Articles of Incorporation or the Bylaws of the Corporation
or any Existing Agreement or any statute regulating the business of the
Corporation, or any rule, regulation, decision, directive or order of
any court or governmental agency or body having jurisdiction over the
Corporation or any of its activities or properties (including, without
limitation, all rules, regulations, releases, decisions, directives or
orders of the KDFI, the FDIC or the FED); and except as expressly set
forth herein and in the Prospectus, no consent, approval, authorization
or order of any court or governmental agency or body (excluding the
KDFI, the FDIC or the FED) is required for the consummation of the
transactions contemplated hereby. (g) The Corporation's Articles of
Incorporation authorizes the issuance of 5,000,000 shares of common
stock, no par value per share (the "Common Stock"), 1,000,000 shares of
which are outstanding as of the date of this Agreement. The Shares
being sold by the Corporation pursuant to this Agreement, when issued
and delivered in accordance with this Agreement, will be duly and
validly issued and outstanding and fully paid, and the Corporation's
Common Stock conforms to all statements in relation thereto contained
in the Prospectus.
(h) To the knowledge of the Corporation's directors and
executive officers , neither the Corporation nor any directors or
executive officers has made any payment of funds of the Corporation
prohibited by law, and no funds of the Corporation have been set aside
to be used for any payment prohibited by law.
(i) The financial statements and schedules and the related
notes thereto included or to be included, as the case may be, in the
Prospectus present fairly the financial position of the Corporation as
of the respective dates of such financial statements and schedules, and
the results of operations and changes in equity and in cash flows of
the Corporation purported to be shown thereby for the respective
periods covered thereby, all in conformity with generally accepted
accounting principles consistently applied throughout the periods
involved, except as may be disclosed in the Prospectus. All adjustments
necessary for a fair presentation of the results of such periods have
been made in conformity with generally accepted accounting principles
consistently applied throughout the periods involved. The Corporation
had an outstanding capitalization as set forth under "Capitalization"
in the Prospectus as of the date indicated therein (and as adjusted for
the offering of the Shares), and there has been no material change
therein since such date except as disclosed in the Prospectus.
3. Employment of Sales Agent; Sales and Delivery of the Shares. On the
basis of the representations and warranties herein contained, and subject to the
terms and conditions and covenants and agreements set forth herein, the parties
hereto agree as follows:
(a) The Sales Agent will act as exclusive agent during the term hereof for the
Corporation on a "best efforts" basis to sell the Shares for the account of
the Corporation at a price of $16.00 per share, and the Sales Agent agrees
to use its best efforts to effect such sales. However, the Sales Agent
makes no commitment to purchase all or any of the Shares. The Sales Agent's
engagement hereunder will terminate on the earlier of (a) November 30,
2000, or such later date to which the Corporation may in its discretion
extend the offering, but not later than February 28, 2001 ; (b) the sale of
all of the Shares; or (c) termination of the Sales Agent's engagement by
the Corporation or the Sales Agent in accordance with the provisions of
Section 10 hereof. The period from the Effective Date(as hereinafter
defined) to such termination of the Sales Agent's engagement shall be
referred to as the "Offering Period." The Sales Agent may at its discretion
employ the use of sub-agents to sell the offering.
(b) As compensation for its efforts, and subject to the release to the
Corporation of subscription proceeds for the Shares by the Escrow Agent (as
defined in Section 3(c)), the Sales Agent shall within seven (7) business
days after any sale of Shares be paid by the Corporation a commission of 6
1/2% of the proceeds of the Shares sold by the Sales Agent to persons not
as this date Corporation shareholders , 2 1/2% to persons currently
Corporation shareholders as listed in Schedule A and 0% to Corporation
directors, employees and officers as listed in Schedule B. Regardless of
the final mix of buyers, the Corporation shall pay to the Sales Agent a
minimum of 1% of the entire amount raised. The schedules A and B must be
delivered to the Sales Agent within one business day of the completion of
this document. Schedules A and B will list an individual's name, address
and phone number, if available. If no shares are sold hereunder due to the
early termination of the offering , the Corporation shall promptly
reimburse the Sales Agent for all reasonable accountable out-of-pocket
expenses incurred by or on behalf of the Sales Agent in connection with
this Agreement, including reasonable fees and disbursements of its counsel,
not to exceed an aggregate of $20,000.
(c) All subscribers will be instructed to make their remittances payable to
"USAccess Bank, Escrow Agent for First Security Bancorp, Inc." in
accordance with the instructions contained in the Prospectus, and any
proceeds received by the Sales Agent shall promptly be transmitted to
USAccess Bank (the "Escrow Agent") by noon of the next business day after
receipt. If any cleared subscription funds are not accepted by the
Corporation by November 30, 2000 or such later date to which the
Corporation may in its discretion extend the offering, but not later than
February 28, 2001 such subscription funds shall be promptly returned to the
subscribers therefor, in the manner described in the escrow agreement
between the Escrow Agent and the Corporation unless extended by agreement
of the Corporation and the Sales Agent. The Corporation shall be
responsible for payment of the Escrow Agent's fees.
(d) Following the acceptance by the Corporation of any subscriptions. all funds
held pursuant to subsection (c) herein above or otherwise received by the
Escrow Agent in payment for the Shares which relate to subscriptions
accepted by the Corporation shall be transferred as follows: (i) the net
proceeds (the offering price less the Sales Agent's commissions in
accordance with Section 3(b) will be transferred to the Corporation and
(ii) an amount equal to the Sales Agent's commissions on the sale of such
Shares will be transferred directly to the Sales Agent. In addition, the
Corporation will deliver to the Sales Agent or mail to the purchasers of
such Shares on the Sales Agent's instructions all certificates evidencing
all such Shares as soon as reasonably practicable. Certificates for such
shares shall be in such denominations and registered in such name or names
as requested by the subscribers therefore. The Corporation will permit the
Sales Agent, to examine and package such certificates for delivery. All
subscription funds received by the Sales Agent shall be held until each
check is cleared.
(e) The Corporation and the Sales Agent each represents to the other that no
person was or is entitled, directly or indirectly, to compensation from it
or any of its affiliates for services as a finder in connection with the
proposed offering.
4. Additional Covenants of the Corporation. The Corporation covenants and
agrees with the Sales Agent that:
(a) The Corporation will (i) notify the Sales Agent promptly of any request by
the SEC or any other governmental body or agency for the amending or
supplementing of the Prospectus or for information with the respect to the
Prospectus; (ii) prepare, promptly upon the Sales Agent's request, any
amendments or supplements to the Prospectus which, in the Sales Agent's
reasonable opinion, are necessary or advisable in connection with the
distribution of the Shares by the Sales Agent; and (iii) not distribute any
amendment or supplement to the Prospectus to which the Sales Agent shall
reasonably object by notice to the Corporation after having been furnished
a copy of any such proposed amendment or supplement within a reasonable
time prior to the proposed distribution.
(b) The Corporation will advise the Sales Agent, promptly after it shall
receive notice or obtain knowledge thereof, of the initiation or
threatening of any action, suit or proceeding for the purpose of preventing
or suspending the use of the Prospectus and that it will use all reasonable
efforts to prevent the issuance of any order or ruling preventing or
suspending the offering or to obtain its withdrawal if such an order or
ruling should be issued.
(c) The Corporation at its expense will furnish to the Sales Agent, as soon as
available, copies of the Prospectus and all amendments and supplements
thereto in such quantities as the Sales Agent may from time to time
reasonably request. The Corporation will also furnish an electronic copy
(in Microsoft Word) of the Prospectus. The Corporation will place the Sales
Agent's name on the front of the Prospectus.
(d) During a period of three years from the Effective Date, the Corporation
agrees to furnish to its shareholders and to the Sales Agent, in
accordanced with SEC rules and regulations , an annual report with respect
to such year (including financial statements audited by independent
certified accountants).
(e) Without the Sales Agent's consent (which will not be unreasonably
withheld), the Corporation will not issue, sell, contract to sell or grant
any option for the sale of or otherwise dispose of any shares of Common
Stock or securities convertible into or exercisable for Common Stock (other
than (i) the issuance of the Shares being sold by the Corporation pursuant
to the Prospectus, (ii) the issuance of stock pursuant to outstanding
warrants as described in the Prospectus, (iii) options for the purchase of
4,000 shares of Common Stock to be issued to Jim Burkholder and (iv)
options issued pursuant to the Corporation Stock Award Plan) within 180
days from the date the Offering Period terminates.
(f) The Corporation will apply the net proceeds from the offering received by
it substantially in the manner set forth under "Use of Proceeds" in the
Prospectus.
(g) During a period of three years from the Effective Date (as hereinafter
defined), the Corporation or its successors or assigns will comply in all
material respects with all registration, filing and reporting requirements
of the Securities Act of 1933 and Securities Exchange Act of 1934, if
applicable, or imposed by the KDFI, the FDIC or the FED, in each case which
are or may from time to time become required of the Corporation or its
successors or assigns.
5. Covenants of the Sales Agent. The Sales Agent covenants and agrees with
the Corporation that:
(a) It will maintain its legal existence in good standing;
(b ) The Sales Agent shall use its best efforts to sell, for the account of
the Corporation, all of the Shares .
(c) The Sales Agent will maintain an accurate record of all orders to purchase
Shares and funds received, including the name, address and social security
or taxpayer identification number of each prospective purchaser and the
manner in which the stock certificate is to be issued and shall hold such
information confidential for the benefit of the Corporation.
(d) The Sales Agent is registered with the SEC as a broker-dealer and is a
member in good standing with the National Association of Securities
Dealers, Inc. (the "NASD"), and the Sales Agent and all its agents and
representatives have or will have all required licenses and registrations
to perform its obligations under this Agreement; and such registrations,
membership and licenses will remain in effect during the term of this
Agreement. The Sales Agent will comply with all applicable laws, statutes,
ordinances and regulations, including without limitation the rules and
regulations of the NASD and any other federal or state governmental agency
which are applicable to it. The Agreement has been duly and validly
authorized, executed and delivered by the Sales Agent and it its valid and
binding agreement and obligation. The Sales Agent and all NASD members
involved in the underwriting will comply with Rules 2730, 2740, 2420, 2750,
and 2710 of the NASD Conduct Rules and Rule 15c2-4 of the Securities
Exchange Act of 1934.
(e) The Sales Agent will have prepared at its expense a Blue Sky Survey (the
"Blue Sky Survey") outlining the requirements for qualification of the
Shares in the states enumerated on Schedule C hereto and will take any and
all actions (at its expense apart from filing fees) necessary to qualify
the Shares in said states).
6. Responsibility for Payment of Expenses. The Corporation covenants and
agrees with the Sales Agent that:
(a) Whether or not the transactions contemplated hereunder are consummated or
this Agreement is prevented from becoming effective or is terminated under
the provisions of Section 10 hereof, the Corporation will pay all the costs
and expenses typically borne by issuers of securities in a public offering,
including, without limitation (i) the costs and charges of any transfer
agent or registrar and the cost of preparing stock certificates; (ii) the
printing or other reproduction of this Agreement and any Blue Sky Survey ;
(iii) the requisite filing fees for the qualification of the Shares under
state securities laws (if necessary), ; (iv) the filing fee of the NASD;
and (v) the printing and delivery to the Sales Agent of copies of the
Prospectus and any amendments or supplements thereto. Wherever possible,
the Sales Agent will forward the above invoices and bills directly to the
Corporation for direct payment to the respective vendor.
(b) If this Agreement is canceled or terminated (other than pursuant to Section
10 (c)) or fails to become effective, the Corporation shall reimburse the
Sales Agent for all reasonable, accountable out-of-pocket expenses actually
incurred in accordance with (and subject to the $20,000 aggregate limit
described in) Section 3(b).
7. Conditions of the Sales Agent's Obligations. The Sales Agent's
obligations as provided herein shall be subject to the continuing accuracy, as
of the date hereof and through the end of the Offering Period, of the
representations and warranties of the Corporation herein, to the performance by
the Corporation of its obligations hereunder, and to the following additional
conditions:
(a) No action, suit or proceeding for the purpose of preventing or suspending
the use of the Prospectus shall have been initiated or, to the knowledge of
the Corporation or the Sales Agent, threatened by the SEC, or any other
governmental agency or body nor shall have any such governmental agency or
body notified the Corporation or any of its agents of any objections to the
use of the Prospectus. Any request of the SEC, or any other governmental
agency or body for information (to be included in the Prospectus or
otherwise) shall have been complied with to the Sales Agent's reasonable
satisfaction.
(b) The Sales Agent shall not have advised the Corporation that the Offering
Circular, or any amendment or supplement thereto, contains an untrue
statement of fact which in the Sales Agent's opinion is material or omits
to state a fact which in the Sales Agent's opinion 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) Except as contemplated in the Prospectus, subsequent to the respective
dates as of which information is given in the Prospectus, there shall not
have been any material adverse change in the capital stock, short-term debt
or long-term debt of the Corporation or any material adverse change, or any
development reasonably likely to result in a prospective material adverse
change, in the condition (financial or other), net worth or results of
operations of the Corporation which, in the Sales Agent's reasonable
judgment, makes it impractical or inadvisable to offer or deliver the
Shares on the terms and in the manner contemplated in the Prospectus.
(d) At the time of any sale of shares , the Sales Agent shall have received the
opinion of Stoll, Keenon & Park, LLP dated as a date within thirty (30)
days of any such sale , addressed to the Sales Agent, and to the effect
that to counsel's knowledge:
(i) The Corporation is a validly existing banking corporation under the laws of
the Commonwealth of Kentucky and the Corporation has full power and
authority (corporate and other) to conduct its business as described in the
Prospectus.
(ii) The Corporation has authorized and outstanding capital stock as set forth
in the Prospectus, all the shares of which have been duly authorized,
validly issued and fully paid and non-assessable; and the Shares upon sale
and issuance in accordance herewith and as described in the Prospectus will
be duly authorized, validly issued and fully paid and non-assessable; and,
to such counsel's actual knowledge, the Common Stock conforms as to legal
matters to the descriptions thereof contained in the Prospectus under the
heading "Description of Capital Stock".
(iii)The deposit accounts of the Corporation are insured by the FDIC up to the
applicable limits.
(iv) To such counsel's actual knowledge, no action, suit or proceeding for the
purpose of preventing or suspending the use of the Prospectus has been
initiated or threatened by the KDFI, the FDIC, the FED, or any other
governmental agency or body.
(v) To such counsel's actual knowledge there are no legal or governmental
actions, suits or proceeding pending or threatened against the Corporation
or involving the properties of the Corporation, and the description in the
Prospectus and any amendments or supplements thereto of all contracts and
other documents therein described are materially accurate summaries and
fairly present the information required to be shown.
(vi) To such counsel's actual knowledge there has been no breach of the
Corporation's Articles of Incorporation or Bylaws or material default under
any obligation, agreement, covenant or condition contained in any evidence
of indebtedness or in any contract or other agreement or instrument to
which the Corporation is a party or by which it or any of its properties
may be bound.
(vii)This Agreement has been duly authorized, executed and delivered by the
Corporation.
(viii) The certificates evidencing the Shares are in due and proper form.
Such opinion shall also contain a statement by counsel to the effect that
such counsel has no actual knowledge that either the Prospectus or any amendment
or supplement thereto contains any untrue statement of a material fact or omits
to state any 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 giving such opinion, such attorneys may rely upon the opinions of other
counsel of good standing and certificates of public officials and the
Corporation's directors and officers; provided, however, that the extent of
their reliance on such certificates or opinions is stated in such opinion,
signed copies of such certificates and opinions are attached to such opinion,
and such opinion shall state that such attorneys believe the Sales Agent and
they are entitled so to rely.
(e) At the time of any sale of Shares , the Sales Agent shall have received
from the Corporation a certificate, signed by the President and Controller
of the Corporation and dated as of the Closing Date, to the effect that, to
the best of their knowledge, based on reasonable investigation:
(i) The representations and warranties of the Corporation in this Agreement are
materially true and correct, as if made at and as of the date of the sale
in question , and the Corporation has performed and complied with all the
agreements and satisfied all the conditions to be performed, complied with
or satisfied by it at or prior to the sale in question ;
(ii) No action, suit or proceeding for the purpose of suspending the use of the
Prospectus has been instituted or is pending or threatened, and there is no
basis for any such suit or proceeding; and
(iii)As of the date of the Prospectus and of the sale in question neither the
Prospectus nor any amendment or supplement thereto includes any untrue
statement of a material fact or omits to state any 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, and, since the
date of the Prospectus, there has occurred no event required to be set
forth in an amendment or supplement to the Prospectus which has not been so
set forth.
(f) The Corporation shall have furnished to the Sales Agent such further
certificates and documents as the Sales Agent shall have reasonably
requested.
(g) All of the Shares shall be tendered for delivery in accordance with the
terms and provisions of this Agreement.
8. Indemnification.
(a) The Corporation agrees to indemnify and hold harmless the
Sales Agent, each of its agents, attorneys, officers, directors, and
employees, and any person who controls the Sales Agent within the
meaning of the Securities Act of 1933 against any and all losses,
claims, lawsuits, damages, or liabilities to which the Sales Agent or
its agents, attorneys, officers, directors or control persons may
become subject insofar as such losses, claims, lawsuits, damages, or
liabilities (including awards and/or judgments) arise out of or are in
connection with the Prospectus or any amendment or supplement thereto,
or any representations, statements or other acts by the Corporation,
its officers, directors, employees, agents, or control persons, and
will reimburse the Sales Agent, its officers, directors, employees,
agents, attorneys and any person who controls the Sales Agent for any
and all costs and expenses, including reasonable counsel fees incurred
by them in connection with the investigation or defense of any such
loss, claim, lawsuit, damage or liability; provided, however, that the
Corporation will not be liable in any such case to the extent that any
such loss, claim, lawsuit, or liability arises out of or is based upon
the negligent acts or omissions or intentional misconduct of the Sales
Agent or its agents, attorneys, officers, directors or control of
persons, including, without limitation, an untrue statement or omission
made in the Prospectus or any amendment or supplement thereto or in
reliance upon and in conformity with written information furnished to
the Corporation by or on behalf of the Sales Agent specifically for use
with reference to the Sales Agent in preparation thereof. The
Corporation acknowledges that the statement set forth under the heading
"The Offering - Manner of Distribution" in the Prospectus or any
amendment or supplement thereto constitutes the only information
relating to the Sales Agent furnished in writing to the Corporation by
the Sales Agent expressly for inclusion in the Prospectus or any
supplement.
(b) The Sales Agent will indemnify and hold harmless the
Corporation, each of its agents, attorneys, officers, directors, and
employees, and any person who controls the Corporation within the
meaning of the Securities Act of 1933 against any and all losses,
claims, lawsuits, damages, or liabilities to which the Corporation or
any such person may become subject insofar as such losses, claims,
lawsuits, damages or liabilities (including awards and/or judgments)
arise out of or in connection with or result from any negligent act or
omission or intentional misconduct of the Sales Agent or its agent,
attorneys, officers, directors or control person, including, without
limitation any statements furnished to the Corporation in writing by
the Sales Agent that are included in the Prospectus or any amendment or
supplement thereto and which are furnished specifically for use with
reference to the Sales Agent in preparation thereof, and will reimburse
any and all costs and expenses, including reasonable counsel fees
incurred by the Corporation or other indemnified person in connection
with investigating or defending any such loss, claim, lawsuit, damage,
or liability.
(c) If the indemnification of a person specified above is for
any reason held unenforceable, the indemnifying party agrees to
contribute to the losses, claims, damages and liabilities for which
such indemnification is held unenforceable, (i) in such proportion as
is appropriate to reflect the relative benefits to the Corporation, on
the one hand, and the Sales Agent, on the other hand, of the
transaction as contemplated (whether or not the transaction is
consummated) or (ii) if (but only if) the allocation provided for in
clause (i) is for any reason held unenforceable, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) but also the relative fault of the Corporation, on the one
hand, and the Sales Agent, ; provided however, that, to the extent
permitted by applicable law, in no event shall the Sales Agent be
required to contribute an aggregate amount in excess of the aggregate
fees actually paid to it under this Agreement.
(d) If an indemnified party is requested or required to appear
as a witness in any action brought by or on behalf of or against the
indemnifying party or any affiliate of the indemnifying party in a
transaction contemplated by this Agreement in which such indemnified
party is not named as a defendant, the indemnifying party shall
reimburse the indemnified party for all accountable and reasonable
expenses incurred by it in connection with such indemnified party's
appearing and preparing to appear as such a witness, including, without
limitation, reasonable fees and disbursements of its legal counsel.
(e) Neither party shall, without the other party's prior
written consent, which consent shall not be unreasonably withheld,
settle, compromise, or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding in respect of which
indemnification could be sought against it under the indemnification
provisions of this Agreement, whether or not any indemnified party is
an actual or potential party to a claim, action, or proceeding, unless
such settlement, compromise, or consent includes an unconditional
release of each indemnified party from all liability arising out of
such claim, action, or proceeding.
(f) The foregoing reimbursement, indemnity, and contribution
obligations shall be in addition to any liabilities which the
indemnifying party may otherwise have. The reimbursement and indemnity
obligations of the indemnifying party under such subparagraphs shall
extend upon the same terms and conditions to any affiliate of the
indemnified party, and the shareholders, directors, officers,
employees, attorneys and control persons (if any), as the case may be,
of the indemnified party and any of its affiliates.
(g) Before any proposed sale, distribution, or liquidation of
all or a significant portion of a party's assets or any significant
recapitalization of its outstanding securities in a transaction
pursuant to which such party's ability to honor its obligations
hereunder might be adversely affected, such party will notify the other
party in writing thereof and, if requested by the other party, shall
arrange alternative means for providing for the obligations of such
party set forth in this Section 8, including the assumption of such
obligations by a third party or the issuance or creation of an escrow,
in each case in an amount and upon terms and conditions satisfactory to
the indemnified party. The provisions of Section 8 shall survive any
termination of the authorization provided by this Agreement.
9. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Corporation and the Sales
Agent herein, or in certificates delivered pursuant hereto, and the indemnity
agreements contained in Section 8 hereof, shall remain operative and in full
force and effect, and shall survive the issuance of the Shares.
10. Effective Date of this Agreement and Termination.
(a) This Agreement shall become effective on September ____ , 2000 (the
"Effective Date").
(b) The Sales Agent shall have the right to terminate this Agreement by
giving notice as hereinafter specified at any time at or prior to the
termination of the offering if: (i) the Corporation shall have failed, refused
or been unable, at or prior to the termination of the offering , to perform any
material agreement to be performed by it hereunder or any representation
warranty or covenant of the Corporation shall be inaccurate in any material
respect; (ii) any other material condition of the Sales Agent's obligations
hereunder required to be fulfilled by the Corporation are not fulfilled; (iii) a
banking moratorium shall have been declared by federal or Kentucky authorities;
(iv) there shall have been a material adverse change in the financial condition,
business or results of operations of the Corporation or; (v) any other material
event or occurrence of a similar character shall have occurred since the
execution of this Agreement which, in the Sales Agent's reasonable judgment
makes it impractical or inadvisable to proceed with this Agreement and/or the
completion of the sale and payment for the Shares. Any such termination shall
not terminate the Corporation's obligations pursuant to the provisions of
Sections 3, 6 and 8 hereof.
(c) The Corporation shall have the right to terminate this
Agreement by giving notice as hereinafter specified at any time at or prior to
the termination of the offering if: (i) the Sales Agent shall have failed,
refused or been unable, at or prior to the termination of the offering, to
perform any material agreement to be performed by it hereunder or any
representation, warranty or covenant of the Sales Agent shall be inaccurate in
any material respect; (ii) any other material condition of the Corporation's
obligations hereunder required to be fulfilled by the Sales Agent are not
fulfilled; (iii) a banking moratorium shall have been declared by federal or
Kentucky authorities; (iv) there shall have been a material adverse change in
the financial condition, business or results of operations of the Sales Agent
or; (v) any other material event or occurrence of a similar character shall have
occurred since the execution of this Agreement which, in the Corporation's
reasonable judgment makes it impractical or inadvisable to proceed with this
Agreement and/or the completion of the sale and payment for the Shares. Any such
termination shall not terminate the Sales Agent's obligations pursuant to the
provisions of Sections 3, 5 and 8 hereof.
11. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and, if sent to the Sales
Agent, shall be mailed, delivered or telecopied and confirmed to the Sales Agent
at Winebrenner Capital Partners, LLC 2300 Greene Way, Suite 200, Louisville, KY
40220 and if sent to the Corporation, shall be mailed, delivered or telecopied
and confirmed to the Corporation at First Security Bancorp Inc., 400 E. Main
St., Lexington, Kentucky 40507 Attention: Julian E. Beard (with a copy to J.
David Smith, Jr. Stoll, Keenon & Park, LLC, 201 East Main Street, Suite 1000,
Lexington, Kentucky 40507). Any party to this Agreement may change such address
for notices by sending to the other party to this Agreement written notice of a
new address for such purpose.
12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Sales Agent, the Corporation and their respective successors
and assigns. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person or entity , other than the parties hereto
and their successors and assigns and the persons referred to in Section 8, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained; this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of the parties hereto and their respective successors and assigns and
such indemnified persons and for the benefit of no other person or corporation.
No purchaser of any of the Shares from the Sales Agent shall be construed a
successor or assign merely by reason of such purchase.
13. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Kentucky, without
reference to its principles of conflicts of law or choice of law.
14. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which shall
constitute one and the same instrument. The validity of this Agreement
shall not be impaired if each party does not execute the same counterpart
so long as the execution of each party appears on the counterparts taken as
a whole.
<PAGE>
If the foregoing correctly sets forth the understanding between the
Corporation and the Sales Agent, please so indicate by signing in the space
provided below for that purpose, whereupon this Agreement shall constitute a
binding agreement between the Corporation and the Sales Agent.
FIRST SECURITY BANCORP, INC.
By:_______________________________
Name: Julian E. Beard
Title: Chairman
Date:______________________________
Accepted as of the date first above written.
WINEBRENNER CAPITAL PARTNERS, LLC.
By:________________________________
Name: Earl G. Winebrenner, III
Title: President
Date:______________________________
