Exhibit 1
FIRST SECURITY BANCORP INC.
COMMON STOCK
1,000,000 Shares of Common Stock
SALES AGENCY AGREEMENT
September 1, 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 prospectus
included in the Registration Statement filed by the Corporation with the
Securities and Exchange Commission ("SEC") on August 10, 2000 File Number
333-43444 (the "Registration Statement"), as said prospectus shall be hereafter
amended prior to the effectiveness of said Registration Statement (as amended
the "Prospectus").
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 Corporation shareholders as of the
date the Registration Statement is declared effective by the SEC, 2 1/2
% to persons who are Corporation shareholders (who are not Corporation
directors, advisory directors, organizers, employees and officers)as of
the date the Registration Statement is declared effective by the SEC
including, without limitation, the shareholders listed in Schedule A
and 0% to Corporation directors, advisory directors, organizers,
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 $155,000. 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. 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 " FSB Escrow," in accordance with the
instructions contained in the Prospectus, and any proceeds received by
the Sales Agent shall promptly be transmitted to USAccess Bank as
designee for the escrow agent, Peoples Bank & Trust Company, Inc. (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 l5c2-4 of the Securities
Exchange Act of 1934.
(e) The Sales Agent will have prepared at the Corporation's
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 necessary to
qualify the Shares in said states.
6. Responsibility for Payment of Expenses. The Corporation and the Sales
Agent covenant and agree 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 and the legal fees and disbursement of counsel
incurred in connection with the qualification of the Shares under state
securities laws; (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 vender.
(b) Except as set forth in Section 6(a) (iii) above, the
Corporation shall not be responsible for the legal fees and
disbursements of counsel for the Sales Agent or the expenses
customarily paid by sales agents.
(c) 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 Prospectus 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:
(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) At the time this Agreement is executed and also on the Closing
Date, there shall be delivered to the Sales Agent a letter addressed to the
Sales Agent, from Crowe, Chizek and Company LLP, the Corporation's independent
auditor, the first letter to be dated the date of this Agreement and the second
letter to be dated the Closing Date, which shall be in form and substance
reasonably satisfactory to the Sales Agent and shall contain information as of a
date within five days of the date of such letter. There shall not have been any
material change or decrease set forth in any letter referred to in this
subsection (f) that makes it impracticable or inadvisable in the judgment of the
Sales Agent to proceed with the public offering or purchase of the Shares as
contemplated hereby.
(g) The Corporation shall have furnished to the Sales Agent such
further certificates and documents as the Sales Agent shall have reasonably
requested.
(h) 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 1, 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 performed 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.
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:
/s/ Julian E. Beard
Name: Julian E. Beard
Title: Chairman
Date:
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Accepted as of the date first above written.
WINEBRENNER CAPITAL PARTNERS, LLC.
By:
/s/Earl G. Winebrenner, III
Name: Earl G. Winebrenner, III
Title: President
Date:
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