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EXHIBIT 10.2
JOINT VENTURE AGREEMENT
This JOINT VENTURE AGREEMENT (the "Agreement") is made as of October 1,
1998 by and between CUMBERLAND BANCORP, INC., a corporation organized and
existing under the laws of the State of Tennessee, with offices at 0000 X. Xxxx
Xxx., Xxxxxxxx, Xxxxxxxxx 00000, and a registered bank holding company pursuant
to the Bank Holding Company Act of 1956, as amended ("Cumberland") and
BANCKENTUCKY, INC., a corporation organized and existing under the laws of the
Commonwealth of Kentucky, with offices at 000 Xxxxx 00xx Xxx., Xxxxxx, Xxxxxxxx
00000 (hereinafter referred to as the "Murray Group"),
WITNESSETH:
WHEREAS, BancKentucky, Inc. is a new corporation formed by a group
primarily located in Murray, Kentucky to undertake a stock offering and to serve
as a unitary thrift company for a de novo federal savings bank;
WHEREAS, Cumberland and the Xxxxxx Group desire to enter into a joint
venture agreement to form, own and carry out the business of such federal
savings bank with its main office to be located in Xxxxxx, Xxxxxxxx County,
Kentucky, in accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants contained herein, Cumberland and the Xxxxxx Group
hereby agree as follows:
ARTICLE 1.
DEFINITIONS
In addition to terms defined elsewhere herein, the following terms
shall have the following meanings when used herein (any term defined in the
singular shall have the same meaning when used in the plural and vice versa):
1.1 "AFFILIATE" of Cumberland or the Xxxxxx Group shall mean any
corporation, company, partnership, joint venture, association, organization or
other entity that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, such Party.
1.2 "BENEFICIAL OWNERSHIP" by a person of a security, or a security
"beneficially owned" by a person, shall be determined for the purposes of this
Agreement in the same manner as provided in Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended.
1.3 "BOARD OF DIRECTORS" OR "BOARD" shall mean the Board of Directors
of FSB.
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1.4 "BYLAWS" shall mean the bylaws of the FSB.
1.5 "CHARTER" shall mean the charter of the FSB.
1.6 "CLOSING" shall mean the closing described in Article 7 herein to
consummate the transactions contemplated hereby.
1.7 "COMMON STOCK" shall mean the common stock of the FSB, par value
$10.00 per share.
1.8 "DIRECTOR" shall mean a member of the Board of Directors of the
FSB.
1.9 "EQUITY SECURITIES" shall mean any securities having voting rights
with respect to the election of the Board.
1.10 "FAIR MARKET VALUE" of the Common Stock shall mean the value as
determined by an annual evaluation of the Common Stock of the FSB, without
taking in consideration an acquisition or control premium for such shares. Fair
market value shall be determined by agreement of the parties at each annual
meeting of shareholders or, in the event such agreement can not be reached by
the parties, then the parties shall select an appraiser/evaluator to determine
the value of applicable stock. In the event the parties can not agree upon one
such appraiser/evaluator, then each party shall select an appraiser/evaluator to
determine the value of applicable stock and, if necessary, the two
appraisers/evaluators will select a third appraiser/evaluator and two of the
three agreeing to the value for stock will set and determine its value.
1.11 "FEDERAL BANK REGULATORY AUTHORITIES" shall mean the Office of
Thrift Supervision ("OTS"), the Federal Deposit Insurance Corporation ("FDIC")
and the Board of Governors of the Federal Reserve System ("FRB"), as the context
requires.
1.12 "FSB" shall mean the federal savings bank to be formed by the
Parties for the purposes set forth herein.
1.13 "GOVERNMENTAL APPROVAL" shall mean any consent, approval,
authorization, permit, exemption, license or other action of or by, ro any
notice to or filing or registration with, any governmental authority or agency
or regulatory or administrative body, including federal bank regulatory
authorities and state bank regulatory authorities and the expiration of any
required stays to such approval.
1.14 "INITIAL BUSINESS PLAN" shall mean the initial three (3) year
business plan of the FSB submitted to Federal Bank Regulatory Authorities.
1.15 "INITIAL CAPITAL" shall mean the initial capital of the FSB agreed
to by the Parties.
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1.16 "REPRESENTATIVES" shall have the meaning set forth in Section
4.2.1 herein.
1.17 "SHARES" shall have the meaning set forth in Section 3.1.1 herein.
1.18 "OPERATING AND SERVICES AGREEMENT" shall have the meaning set
forth in Section 7.4.4 herein.
1.19 "PARTIES" shall mean the Cumberland and the Xxxxxx Group.
1.20 "PRO RATE SHARE" shall mean a holder's prorate share of
outstanding Equity Securities which shall be a fraction calculated by dividing
(I) the number of shares of Common Stock beneficially owned by the holder as of
the applicable date, by (ii) the total number of shares of Common Stock
outstanding as of such date.
1.21 "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
1.22 "SUBSIDIARY" of Cumberland shall mean any corporation, company or
other entity more than fifty percent (50%) of whose securities having voting
rights with respect to the election of directors or other ownership interests
representing the right to make decisions for such entity are owned or
controlled, directly or indirectly, by such Party, but such corporation or other
entity shall be deemed to be a "Subsidiary" only for so long as such ownership
or control exists.
1.23 "TRANSFER" shall mean any actual or proposed sale or other
disposition of all or a portion of any Party's interest in such Party's Equity
Securities (legal or equitable) by any means, direct or indirect.
ARTICLE 2.
FORMATION OF THE FEDERAL SAVINGS BANK
2.1 FORMATION OF THE FEDERAL SAVINGS BANK. At the Closing, Cumberland
and the Xxxxxx Group shall form the FSB as a federal stock savings bank pursuant
to Section 5(c) of the Home Owners Loan Act, as amended, for the purposes set
forth below. The outstanding Equity Securities of the FSB shall be initially
owned fifty percent (50%) by Cumberland, and fifty percent (50%) by the Xxxxxx
Group.
2.2 PROPOSED NAME. The proposed name of the FSB shall be ("The Xxxxxx
Bank, FSB.")
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2.3 RESPONSIBILITY AND COSTS OF FORMATION.
(a) Cumberland shall be responsible for preparing and filing all
regulatory applications necessary to form the FSB. All costs incurred in
connection with the formation of the FSB, including the cost of forming a
holding company, shall be paid for by the FSB. In the event the FSB, for any
reason, does not pay such costs, then such costs shall be borne equally by the
parties hereto.
(b) The Xxxxxx Group shall be responsible for preparing and filing
the offering circular and all regulatory applications necessary for the Xxxxxx
Group to become a unitary savings and loan holding company.
ARTICLE 3.
CAPITALIZATION OF THE FSB
3.1 INITIAL CAPITALIZATION OF THE FSB.
3.1.1 SUBSCRIPTIONS FOR STOCK. At the Closing, the FSB shall issue
to, and Cumberland shall subscribe for 10,000 shares of Common Stock (the
"Cumberland Shares"), and the FSB shall issue to, and the Xxxxxx Group shall
subscribe for, 10,000 shares of Common Stock (the "Xxxxxx Group Shares"). The
FSB shall deliver to each Party at the Closing a certificate or certificates
registered in the name of such Party evidencing the shares of Common Stock
subscribed for by such Party.
3.1.2 INITIAL CAPITAL CONTRIBUTIONS. In consideration for their
respective equity interests in the FSB, at the Closing, each of Cumberland and
the Xxxxxx Group shall make the following contributions to the capital of the
FSB:
(a) Cumberland shall contribute cash in an amount equal
to fifty percent (50%) of the Initial Capital; and
(b) The Xxxxxx Group shall contribute cash in an amount
equal to fifty percent (50%) of the Initial Capital.
3.2 ADDITIONAL CAPITAL. In the event that the shareholders of the FSB
agree to provide, or are required by Federal Bank Regulatory Authorities to
provide, additional capital to the FSB, Cumberland and the Xxxxxx Group each
shall be required to make capital contributions in proportion to its respective
Pro Rata Share of the outstanding Equity Securities of the FSB and, if any such
capital contribution is not made by any Party, then that Party's Pro Rata Share
shall be diluted accordingly.
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3.3 FORMATION OF HOLDING COMPANY. At the option of either party, the
parties agree that they will apply for the formation and approval of a Holding
Company which will own one hundred. per cent (100%) of the stock of the FSB
which Holding Company shall be owned fifty per cent (50%) by the Xxxxxx Group
and fifty per cent (50%) by Cumberland.
ARTICLE 4.
MANAGEMENT OF THE FSB
4.1 SPECIAL SHAREHOLDER APPROVALS. In addition to such approval
requirements specified in the Charter or Bylaws of the FSB or under law, each of
the following actions shall require authorization by resolution of the
shareholders of the FSB which is approved by each of the Cumberland and the
Xxxxxx Group for so long as each Party beneficially owns at least fifty percent
(50%) of the outstanding Equity Securities of the FSB;
(a) The amendment of the Charter;
(b) The increase or decrease in the authorized capital stock
of the FSB;
(c) The creation by the FSB of any new classes or series of
Equity Securities or any other form of Equity Securities;
(d) The increase or decrease in the number of Directors; the
election of any additional directors required by Federal
Bank Regulatory Authorities, as contemplated under Section
4.2.1(a) below; and the election of any odd number
Director;
(e) The sale, lease, transfer or other disposition of all or
substantially all of the assets of the FSB;
(f) The merger or consolidation of the FSB with or into any
other entity or a share exchange involving the Equity
Securities of the FSB and those of another entity;
(g) The issuance by the FSB to any third party of any shares
of stock or other Equity Securities of the FSB;
(h) The dissolution or liquidation of the FSB; and
(I) The amendment of this Agreement.
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4.2 BOARD OF DIRECTORS
4.2.1 MEMBERSHIP.
(a) The Board of Directors of the FSB shall originally
consist of a maximum of fourteen (14) Directors, a maximum of ten (10) of whom
shall be designated by the Xxxxxx Group for so long as the Xxxxxx Group
beneficially owns at least fifty percent (50%) of the outstanding Equity
Securities of the FSB (the "Xxxxxx Group Representatives"), and a maximum of
four (4) of whom shall be designated by Cumberland for so long as Cumberland
beneficially own at least fifty percent (50%) of the outstanding Equity
Securities of the FSB (the "Cumberland Representatives"). If required by Federal
Bank Regulatory Authorities, the Board shall consist of an additional number of
Directors who are not officers, directors or employees of either the Xxxxxx
Group or Cumberland with half of such outside Directors to be nominated by the
Xxxxxx Group and reasonably acceptable to Cumberland and the other half of such
outside Directors to by nominated by Cumberland and reasonably acceptable to the
Xxxxxx Group. The Xxxxxx Group will have a minimum of one representative on the
board of directors of Cumberland.
(b) Each of the Xxxxxx Group and Cumberland shall take
all actions, necessary to cause the nomination, election and/or appointment to
the Board of the Xxxxxx Group Representatives and the Cumberland
Representatives, including voting all of its shares of Equity Securities to
cause the election of the Xxxxxx Group Representatives and the Cumberland
Representatives. If a Xxxxxx Group Representative or a Cumberland Representative
shall cease to be a Director for any reason, then the Xxxxxx Group and
Cumberland shall promptly cause a successor nominated by the Xxxxxx Group or
Cumberland, as the case may be, to be elected or appointed to the Board.
(c) Should either of the Xxxxxx Group or Cumberland
cease to beneficially own at least fifty percent (50%) of the Equity Securities
of the FSB, the provisions of Section 4.2.1 above regarding the number of the
Xxxxxx Group Representatives and Cumberland Representatives on the Board of
Directors shall no longer apply, and unless the Xxxxxx Group and Cumberland
agree otherwise, each Party's representation on the Board shall be in proportion
to such Party's Pro Rata Share of Equity Securities.
ARTICLE 5.
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE XXXXXX GROUP
The Xxxxxx Group hereby represents, warrants and covenants to
Cumberland as follows:
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5.1 AUTHORITY AND BINDING AGREEMENT.
(a) The Xxxxxx Group is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization. The Xxxxxx Group has the full power and authority to execute,
deliver and, subject to receipt of all required Governmental Approvals from
Federal Bank Regulatory Authorities, perform this Agreement and to consummate
the transactions contemplated hereby. The execution, delivery and performance by
the Xxxxxx Group of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized on the part of the Xxxxxx Group by
all necessary action, organizational or otherwise.
(b) This Agreement has been duly executed and delivered by an
authorized officer of the Xxxxxx Group, and is a legal, valid and binding
obligation of the Xxxxxx Group enforceable against it in accordance with its
terms, except as enforcement thereof may be limited by general principles of
equity (regardless of whether such enforceability is considered in a preceding
at law or in equity) and the effect of applicable bankruptcy, insolvency,
moratorium and other similar laws of general application relating to or
affecting creditors' fights generally, including, without limitation, the effect
of statutory or other laws regarding fraudulent conveyances and preferential
transfers.
5.2 AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby will not violate or result in a breach of any
of the terms or provisions of, or constitute a default under, or conflict with
(a) the certificate of incorporation and bylaws or similar constitutive
documents of the Xxxxxx Group, (b) any material agreement, indenture or other
instrument to which the Xxxxxx Group is a party or by which it is bound, (c) any
judgment, decree, order, writ, award or injunction of any court, governmental
body or arbitrator, or (d) any law, rule or regulation applicable to the Xxxxxx
Group, except, in the case of subclause (d), for violations, breaches, defaults
or conflicts that are not, singly or in the aggregate, material to the Xxxxxx
Group's ability to consummate the transactions contemplated hereby.
5.3 CONSENTS AND APPROVALS. Except for the Governmental Approvals
listed on Schedule 5.3, 6.3 attached hereto, no consent, approval or
authorization of or from any governmental entity or any other person not a party
to this Agreement, whether prescribed by law, rule, regulation, contract or
agreement, is required for the execution, delivery and performance of this
Agreement by the Xxxxxx Group, or the consummation by the Xxxxxx Group of the
transactions contemplated hereby.
5.4 INVESTMENT REPRESENTATIONS.
(a) The Xxxxxx Group is acquiring the Xxxxxx Group Shares from the
FSB for its own account for investment only and not with a view to the
distribution thereof within the meaning of the Securities Act or the regulations
of the OTS relating to securities offerings nor with any present intention of
distributing or selling the same. The Xxxxxx Group Shares will not be sold or
transferred by the Xxxxxx Group in violation of the securities laws of the
United States or any state thereof or other jurisdiction.
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ARTICLE 6.
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF CUMBERLAND
Cumberland hereby represents, warrants and covenants to the Xxxxxx
Group as follows:
6.1 AUTHORITY AND BINDING AGREEMENT.
(a) Cumberland is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization.
Cumberland has the full power and authority to execute, deliver and, subject to
receipt of all required Governmental Approvals from Federal Bank Regulatory
Authorities, perform this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance by Cumberland of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized on the part of Cumberland by all necessary action,
organizational or otherwise.
(b) This Agreement has been duly executed and delivered by an
authorized officer of Cumberland, and is a legal, valid and binding obligation
of Cumberland, enforceable against it in accordance with its terms, except as
enforceable against it in accordance with its terms, except as enforcement
thereof may be limited by general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity) and the
effect of applicable bankruptcy, insolvency, moratorium and other similar laws
of general application relating to or affecting creditors' rights generally,
including, without limitation, the effect of statutory or other laws regarding
fraudulent conveyances and preferential transfers.
6.2 AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby will not violate or result in a breach of any
of the terms or provisions of, or constitute a default under, or conflict with
(a) the certificate of incorporation and bylaws or similar constitutive
documents of Cumberland, (b) any material agreement, indenture or other
instrument to which Cumberland is a party or by which it is bound, (c) any
judgment, decree, order, writ, award or injunction of any court, governmental
body or arbitrator, or (d) any law, rule or regulation applicable to Cumberland,
except, in the case of subclause (d), for violations, breaches, defaults or
conflicts that are not, singly or in the aggregate, material to the ability of
Cumberland to consummate the transactions contemplated hereby.
6.3 CONSENTS AND APPROVALS. Except for the Governmental Approvals
listed on Schedule 5.3, 6.3 attached hereto, no consent, approval or
authorization of or from any governmental entity or any other person not a party
to this Agreement, whether prescribed by law, rule regulation,
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contract or agreement, is required for the execution, delivery and performance
of this Agreement by Cumberland, or the consummation by Cumberland of the
transactions contemplated hereby.
6.4 INVESTMENT REPRESENTATIONS.
(a) Cumberland is acquiring the Cumberland Shares from the FSB for
its own account for investment only and not with a view to the distribution
thereof within the meaning of the Securities Act or the regulations of the OTS
relating to securities offerings nor with any present intention of distributing
or selling the same. The Cumberland Shares will not be sold or transferred by
any of the Cumberland in violation of the securities laws of the United States
or any state thereof or other jurisdiction.
ARTICLE 7.
CLOSING
7.1 THE CLOSING. Subject to the satisfaction of the conditions
specified in this Article 7, the transactions contemplated by this Agreement
shall be consummated at a Closing (the "Closing") to be held at a location to be
agreed upon by the Paries within ten (10) business days after the granting of
all Governmental Approvals necessary to consummate the transactions contemplated
hereby and the expiration of all notice periods and waiting periods with respect
thereto.
7.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF CUMBERLAND. The obligations
of Cumberland under this Agreement to be performed at the Closing are subject to
the satisfaction, on or prior to the Closing, of the following conditions,
unless waived in a writing executed and delivered by Cumberland:
7.2.1 NO MISREPRESENTATION OR BREACH OF COVENANTS AND WARRANTIES.
The representations and warranties of the Xxxxxx Group shall be true and correct
in all material respects as of the Closing and the Xxxxxx Group shall have
complied in all material respects with and performed all other obligations and
covenants hereunder required to be performed by it as of the Closing, and
Cumberland shall have received a certificate from the Xxxxxx Group to the
foregoing effect executed by a senior officer of the Xxxxxx Group and dates as
of the Closing date.
7.2.2 CONSENTS. The Xxxxxx Group shall have delivered to Cumberland
copies or other evidence of all consents, approvals or authorizations of or from
any governmental entity or other person necessary for the Xxxxxx Group to
execute, deliver and perform its obligations hereunder and consummate the
transactions contemplated hereby and, in the case of any Governmental Approval,
all notice periods and waiting periods with respect thereto shall have expired
or terminated and all conditions contained in any such approval required to be
satisfied prior to consummation of the transactions contemplated by this
Agreement shall have been satisfied and shall not be reasonably considered by
any Party to be unduly burdensome.
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7.2.3 DELIVERY OF OTHER DOCUMENTS. Cumberland shall have received
(a) a certified copy of the resolutions of the Board of Directors of the Xxxxxx
Group, authorizing and approving the execution, delivery and performance by the
Xxxxxx Group of this Agreement and the transactions contemplated hereby and in
effect as of the Closing date and (b) such additional documents evidencing or
certifying satisfaction of the conditions specified in this Article 7 as may be
reasonably requested by Cumberland.
7.2.4 GOVERNMENTAL APPROVAL. The Cumberland shall receive any
Governmental Approvals necessary to own the Cumberland Common Stock.
7.3 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE XXXXXX GROUP. The
obligations of The Xxxxxx Group under this Agreement to be performed at the
Closing are subject to the satisfaction, on or prior to the Closing, of the
following conditions, unless waived in a writing executed and delivered by The
Xxxxxx Group:
7.3.1 NO MISREPRESENTATION OR BREACH OF COVENANTS AND WARRANTIES.
The representations and warranties of Cumberland shall be true and correct in
all material respects as of the Closing and Cumberland shall have complied in
all material respects with and performed all other obligations and covenants
hereunder required to be performed by it as of the Closing, and the Xxxxxx Group
shall have received a certificate from Cumberland to the foregoing effect
executed by a senior officer of such corporation dated as of the Closing date.
7.3.2 CONSENTS. Cumberland shall have delivered to The Xxxxxx Group
copies or other evidence of all consents, approvals or authorizations of or rom
any governmental entity or other person necessary for Cumberland to execute,
deliver and perform its obligations hereunder and consummate the transactions
contemplated hereby and, in the case of any Governmental Approval, all notice
periods and waiting periods with respect thereto shall have expired or
terminated and all conditions contained in any such approval required to be
satisfied prior to consummation of the transactions contemplated by this
Agreement shall have been satisfied and shall not be reasonably considered by
any Party to be unduly burdensome.
7.3.3 DELIVERY OF OTHER DOCUMENTS. The Xxxxxx Group shall have
received (a) a certified copy of the resolutions of the Board of Directors of
Cumberland, authorizing and approving the execution, delivery and performance by
such Party of this Agreement and the transactions contemplated hereby and in
effect as of the Closing date and (b) such additional documents evidencing or
certifying satisfaction of the conditions specified in this Article 7 as may be
reasonably requested by the Xxxxxx Group.
7.3.4 XXXXXX GROUP FORMATION AND INITIAL STOCK OFFERING. The Xxxxxx
Group shall have successfully completed its initial stock offering in the amount
of $1.7 million and received the approval of the Federal Bank Regulatory
Authorities to operate as a unitary thrift holding company and own the shares of
Common Stock.
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7.4 OTHER CONDITIONS TO OBLIGATIONS OF THE PARTIES. In addition to the
conditions set forth in Sections 7.2 and 7.3 above, the obligations of the
Parties to be performed at the Closing are subject to the satisfaction, on or
prior to the Closing, of the following conditions:
7.4.1 NO INJUNCTION. No Party shall be subject to any order, decree
or injunction of a court or agency of competent jurisdiction that enjoins or
prohibits consummation, or otherwise challenges the legality of validity, of the
transactions contemplated by this Agreement.
7.4.2 APPROVAL TO ORGANIZE FSB. The OTS shall have approved the
Parties' application for permission to organize a federal stock savings bank
pursuant to Section 5)c) of the Home Owners Loan Act, as amended, and any
conditions to such approval shall not be reasonable considered, by any Party to
be unduly burdensome, and the OTS shall have issued the Charter of the FSB.
7.4.3 GRANTING OF DEPOSIT INSURANCE. The FDIC shall have approved
the application for federal deposit insurance for the FSB pursuant to Section
5(a) of the Federal Deposit Insurance Act, as amended, and any conditions to
such approval shall not be reasonably considered by any Party to be unduly
burdensome.
7.4.4 OPERATING AND SERVICES AGREEMENT. The Cumberland and FSB
shall have executed the Operating and Services Agreement substantially in the
form attached hereto as Exhibit A (the "Operating and Services Agreement").
7.5 DELIVERIES AT THE CLOSING. At the Closing:
7.5.1 DELIVERY OF STOCK CERTIFICATES. The FSB shall deliver to each
party, as applicable, stock certificates evidencing the Common Stock subscribed
for by each Party as provided in Section 3.1.1 above.
7.5.2 MAKING OF CAPITAL CONTRIBUTIONS. Each of the Xxxxxx Group and
Cumberland shall make the contributions to the Initial Capital of the FSB set
forth in Section 3.1.2 above in immediately available funds to a designated
account of the FSB.
ARTICLE 8.
SALES OR TRANSFERS OF EQUITY SECURITIES
8.1 GENERAL RESTRICTION. No Party shall Transfer or cause or permit to
be Transferred any Equity Securities beneficially owned by such Party except for
Transfers in compliance with this Article 8, and any purported Transfer in
violation hereof shall be null and void.
8.2 TRANSFERS TO SUBSIDIARIES. Notwithstanding any other provision of
this Article 8,
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each of the Xxxxxx Group and Cumberland may Transfer Equity Securities
beneficially owned by it to a Subsidiary of such Party, provided that, as a
condition to any such Transfer, such transferee obtains any required
Governmental Approvals and agrees in writing to receive and hold such Equity
Securities subject to the provisions of this Agreement, where the transferee is
a Subsidiary, and such transferee agrees to Transfer such Equity Securities back
to the transferor Party in the event that such transferee ceases to be a
Subsidiary of such Party unless the other Party agrees in writing to allow such
transferee to continue to hold such Equity Securities. Any such transferee shall
be included within the definition of "the Xxxxxx Group" or "Cumberland," as the
case may be, for purposes of this Agreement.
8.3 RIGHTS OF FIRST OFFER AND FIRST REFUSAL. Except for Transfers under
Section 8.2 above or pursuant to any of the options granted in Article 9 or 10
herein, prior to the Transfer by either the Xxxxxx Group or Cumberland (a
"Selling Party") of any Equity Securities beneficially owned by such Selling
Party, then Cumberland, in the event that the Xxxxxx Group is the Selling Party,
or the Xxxxxx Group, in the event that Cumberland is the Selling Party (each of
Cumberland or the Xxxxxx Group being an "Offeree Party"), shall be offered the
following rights with respect to such Equity Securities:
8.3.1 OFFER NOTICE. The Selling Party shall deliver a written
notice (an "Offer Notice") to the Offeree Party (a) stating that the Selling
Party proposes or is required to Transfer certain Equity Securities, (b)
specifying the number and type of Equity Securities offered to be Transferred
and the price and other material terms of the proposed Transfer, and (c)
offering to Transfer such Equity Securities to the Offeree party.
8.3.2 AFFIRMATIVE RESPONSE. The Offeree party shall then have
twenty-one (21) days from the date of its receipt of such Offer Notice (the
"Offer Period") to respond in writing to the Selling Party as to whether it has
determined to purchase the offered Equity Securities at the price and on the
terms specified in the Offer Notice. In the event that the Offeree party
notifies the Selling Party in writing within the Offer Period of its desire to
purchase the offered Equity Securities (an "Affirmative Response"), then the
sale and purchase of such Equity Securities shall be consummated within thirty
(30) days after the date of the Selling Party's receipt of such Affirmative
Response or, if later, the date as of which the Parties have obtained all
required Governmental Approvals for such sale and purchase. However, the Xxxxxx
Group shall have no less than (four (4) months) to complete an equity offering
after its Affirmative Response. Any Affirmative Response by the Xxxxxx Group may
be conditioned upon the successful completion of such equity offering.
8.3.3 REFUSAL NOTICE. In the event that the Offeree Party notifies
the Selling Party in writing that it has determined not to purchase the offered
Equity Securities (a "Negative Response") or fails to respond to the Selling
Party by the end of the Offer Period, then, within thirty (30) days after the
earlier of the date of the Selling Party's receipt of such Negative Response or
the end of the Offer Period or an unsuccessful equity offering by the Xxxxxx
Group, the Selling Party may Transfer such Equity Securities to a third party at
a price and on terms no more favorable to such third party than the price and
terms specified in the Offer Notice to the Offeree Party, provided
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that, at least ten (10) days prior to the consummation of such sale to and
purchase by such third party, the Selling Party shall deliver a second written
notice (a "Refusal Notice") to the Offeree Party offering the Offeree Party a
right of first refusal to purchase such Equity Securities at the same price and
on the same terms agreed to by such third party. The Refusal Notice shall be
accompanied by a certificate of the Selling Party certifying that it has
received from a third party a bona fide offer to acquire such Equity Securities
at such price and on such terms specified in the Refusal Notice and identifying
such third party.
8.3.4 EXERCISE NOTICE. The Offeree Party shall have ten (10) days
from the date of its receipt of such Refusal Notice ("Refusal Period") to respnd
in wrining to the Selling Party whether it has determined to purchase the
offered Equity Securities at the price and on the terms specified in the Refusal
Notice. In the event that the Offeree Party notifies the Selling Party in
writing within the Refusal Period of its desire to purchase the offered Equity
Securities ("Exercise Notice"), then the sale and purchase of such Equity
Securities shall be consummated within thirty (30) days after the date of the
Selling Party's receipt of such Exercise Notice or, if later, the date as of
which the Parties have obtained all required Governmental Approvals for such
sale and purchase.
8.3.5 SELLING PARTY RIGHT. In the event that the Offeree Party
notifies the Selling Party in writing that it has determined not to purchase the
offered Equity Securities or fails to respond to the Selling Party by the end of
the Refusal Period, then the Selling Party may Transfer such Equity Securities
to such third party at the price and on the terms specified in the Refusal
Notice, provided that, as a condition to the Transfer, such third party agrees
in writing to receive and hold such Equity Securities subject to the provisions
of this Agreement.
8.4 LEGENDS. All certificates evidencing shares of Common Stock or
other capital stock of the FSB shall be imprinted with a conspicuous legend in
substantially the following form:
The securities represented by this certificate have not been
registered by the Office of Thrift Supervision ("OTS") through the
filing of an offering circular declared effective by the OTS nor
have they been registered under applicable state securities laws
(the "State Acts") and such securities may not be sold or otherwise
disposed of for value by the holder hereof, except upon
registration of such sale or disposition in accordance with the
registration requirements of the securities laws of the United
States and any applicable State Acts, or pursuant to an exemption
from such registration requirements.
The securities represented by this certificate are subject to
certain restrictions on transferability contained in a Joint
Venture Agreement dated as of _________________, 1998 by and among
the Cumberland Bancorp, Inc. and BancKentucky, Inc. Copies of such
agreements are available at the principal offices of ____________,
FSB and should be reviewed carefully before any person or entity
seeks to acquire such securities.
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ARTICLE 9.
CHANGE IN CONTROL OPTION
9.1 CHANGE IN CONTROL OF CUMBERLAND.
9.1.1 CHANGE IN CONTROL OPTION. In the event of:
(a) Any change in control transaction as a result of
which (I) the existing shareholders of Cumberland and
their respective immediate family members cease to
beneficially own as a group at least fifty percent
(50%) of the outstanding voting securities of
Cumberland, (ii) upon the consummation of a merger,
share exchange, consolidation or similar corporate
transaction involving Cumberland, the existing
shareholders and their respective immediate family
members as a group become the beneficial owner of
less than fifty percent (50%) of the outstanding
voting securities of the surviving corporation, or
(iii) a third party acquires all or substantially all
of the assets of Cumberland; or
(b) The institution by Cumberland of proceedings to be
adjudicated bankrupt or insolvent, consent by
Cumberland to the institution of bankruptcy or
insolvency proceedings against it; filing by
Cumberland of a petition seeking or consenting to
reorganization or relief under any applicable federal
or state law relating to bankruptcy; consent by
Cumberland to the appointment of a receiver,
liquidator, assignee, trustee or sequestrator (or
similar official), making by Cumberland of any
assignment for the benefit of creditors; or admission
by Cumberland in writing of its inability to pay its
debts generally as they become due;
then the Xxxxxx Group shall have the option to purchase all of the Equity
Securities of the FSB beneficially owned by Cumberland (the "Xxxxxx Group Call
Option") at a purchase price (the "Call Purchase Price") equal to the Fair
Market Value of such Equity Securities as of the date of the other Parties'
receipt of the Xxxxxx Group Exercise Notice.
9.1.2 EXERCISE OF OPTION. Within Sixty (60) days after the later of
the date of the Xxxxxx Group's receipt of notice of any of the events specified
in Section 9.1.1, 9.2.1 above or the first date on which information as to any
of such events becomes generally available to the public, the Xxxxxx Group may
deliver to the other Parties a written notice of its intention to exercise the
Xxxxxx Group Call Option (a "Xxxxxx Group Exercise Notice"). Upon exercise of
such option, the
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Xxxxxx Group shall have no less than four (4) months to complete an equity
offering, if necessary, after its notice of exercise of said option.
9.1.3 POOLING. In the event that the exercise of this option above
creates a "pooling" issue for Cumberland, then in such event, the option shall
be extended until such time that the exercise of said option does not create a
pooling issue for Cumberland and/or its successor in interest.
9.2 CHANGE IN CONTROL OF THE XXXXXX GROUP.
9.2.1 CHANGE IN CONTROL OPTION. In the event of:
(a) Any change in control transaction as a result of
which (I) the existing shareholders of the Xxxxxx
Group and their respective immediate family members
cease to beneficially own as a group at least fifty
percent (50%) of the outstanding voting securities of
the Xxxxxx Group, (ii) upon the consummation of a
merger, share exchange, consolidation or similar
corporate transaction involving the Xxxxxx Group, the
existing shareholders and their respective immediate
family members as a group become the beneficial owner
of less than fifty percent (50%) of the outstanding
voting securities of the surviving corporation, or
(iii) a third party acquires all or substantially all
of the assets of the Xxxxxx Group; or
(b) The institution by the Xxxxxx Group of proceedings to
be adjudicated bankrupt or insolvent, consent by the
Xxxxxx Group to the institution of bankruptcy or
insolvency proceedings against it; filing by the
Xxxxxx Group of a petition seeking or consenting to
reorganization or relief under any applicable federal
or state law relating to bankruptcy; consent by the
Xxxxxx Group to the appointment or a receiver,
liquidator, assignee, trustee or sequestrator (or
similar official), making by the Xxxxxx Group of any
assignment for the benefit of creditors; or admission
by the Xxxxxx Group in writing of its inability to
pay its debts generally as they become due;
then Cumberland shall have the option to purchase all of the Equity Securities
of the FSB beneficially owned by the Xxxxxx Group (the "Cumberland Call Option")
at a purchase price (the "Call Purchase Price") equal to the Fair Market Value
of such Equity Securities as of the date of the other Parties' receipt of the
Cumberland Exercise Notice.
9.2.2 EXERCISE OF OPTION. Within Sixty (60) days after the later of
the date of Cumberland's receipt of notice of any of the events specified in
Section 9.1.1, 9.2.1 above or the first date on which information as to any of
such events becomes generally available to the public,
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Cumberland may deliver to the other Parties a written notice of its intention to
exercise the Xxxxxx Group Call Option (a "Cumberland Exercise Notice").
ARTICLE 10.
PURCHASE OPTIONS
10.1 VOLUNTARY TERMINATION OPTIONS
10.1.1 XXXXXX RELATIONSHIP TERMINATING OPTION. Cumberland grants
to the Xxxxxx Group an exclusive option wherein it agrees to sell all of its
stock in the FSB to the Xxxxxx Group at any time and for any reason within the
sole discretion of the Xxxxxx Group. For purposes of this option, the purchase
price of FSB stock shall be one hundred twenty-five percent (125%) of fair
market value. In the event the Xxxxxx Group desires to end the relationship with
Cumberland in FSB, the Xxxxxx Group has the option to purchase Cumberland's
stock in the FSB for a price of one hundred twenty-five percent (125%) of the
then fair market value of the FSB stock.
10.2 CUMBERLAND "SHOTGUN" TERMINATING OPTION. Cumberland shall have the
right to initiate a buy or sale at any time by offering its FSB stock to the
Xxxxxx Group at 100% of fair market value. The Xxxxxx Group shall have thirty
(30) days from such offer to accept the offer. If such offer is not accepted by
the Xxxxxx Group, Cumberland shall have the option to purchase the Xxxxxx Group
shares at 100% of fair market value which option may be exercised by written
notice of such intent to exercise within thirty (30) days of such rejection.
Upon exercise of such option, either party shall have a reasonable period of
time to close the sale, but in no event, the Xxxxxx Group shall have no less
than four (4) months to complete an equity offering, if necessary, after its
notice of exercise of said option. In the event neither party elects to purchase
the stock of the other under this provision after such tender is made, then the
rights of first offer and first refusal as provided in Article 8 shall no longer
apply.
ARTICLE 11.
TERM AND TERMINATION
11.1 TERM. This Agreement shall remain in full force and effect unless
otherwise terminated as provided in Section 1 1.2 herein.
11.2 TERMINATION. This Agreement shall terminate automatically upon the
occurrence of any of the following events:
(a) The acquisition by any Party of all of the shares of
Common Stock and other
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Equity Securities of the FSB beneficially owned by the
other party, whether pursuant to the exercise of any of
the options granted in Article 9 above or otherwise; of
(b) The written consent by all Parties to such termination.
11.3 EFFECT OF TERMINATION.
(a) All rights granted to and obligations undertaken by the
Parties hereunder shall terminate immediately upon the termination of this
Agreement except for the confidentiality and nondisclosure obligations set forth
in Article 12 herein, the provisions of Sections 15.1, 15.2 and 15.4 herein, and
the provisions of Exhibit A attached hereto.
(b) Termination of this Agreement shall not affect the rights and
remedies of any Party available at law or in equity in relation to any breach or
nonperformance by any other Party of any of its obligations hereunder prior to
such termination.
11.4 DISSOLUTION OF THE FSB. The FSB shall not be dissolved unless a
plan of dissolution is approved by the shareholders of the FSB pursuant to
Section 4.1(h) above and by Federal Bank Regulatory Authorities. Each of the
Xxxxxx Group and Cumberland agrees that it will make no petition for dissolution
of the FSB under law without the consent of such other Parties.
ARTICLE 12.
CONFIDENTIALITY
12.1 CONFIDENTIALITY OBLIGATION. Each Party (the "Receiving Party")
shall keep strictly confidential any information disclosed by, as the case may
be, any other Party (the "Disclosing Party") or otherwise made available to the
Receiving Party concerning the business, operations, trade secrets or other
proprietary information of the Disclosing Party and any information made
available to the Receiving Party concerning the business, operations, trade
secrets or other proprietary information of the FSB (whether in written media or
otherwise) ("Confidential Information"), using the same degree of care that it
uses to protect its own confidential or proprietary information. "Confidential
Information" shall not include information: (I) which is or becomes generally
available to the public other than as a result of disclosure thereof by the
Receiving Party; (ii) which is lawfully received by the Receiving Party on a
nonconfidential basis from a third party that is not itself under any obligation
of confidentiality or nondisclosure to the Disclosing Party of any other party
with respect to such information; or (iii) which by written evidence can be
shown by the Receiving Party to have been independently developed by the
Receiving Party.
12.2 NONDISCLOSURE OF CONFIDENTIAL INFORMATION. The Receiving Party
shall use Confidential Information solely for the purposes of this Agreement and
the transactions
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contemplated hereby and shall not to disclose or disseminate any Confidential
Information to any person at any time, except for disclosure to those of its
officers and employees, and accountants, attorneys and agents, whose duties
reasonably require them to have access to such Confidential Information.
12.3 EXCEPTION. The foregoing confidentiality and nondisclosure
obligations shall not apply to information which is required to be publicly
disclosed by law or by regulation or, in the case of Cumberland, by the rules of
any securities exchange in which equity securities of Cumberland may be traded;
provided, however, that, in such event, the Receiving Party provides the
Disclosing Party with prompt notice of such disclosure to the extent permitted
by law so that the Disclosing Party has the opportunity if it so desires to seek
a protective order or other appropriate remedy.
12.4 SURVIVAL. The confidentiality and nondisclosure obligations of
this Article 12 shall survive the termination of this Agreement and remain in
effect for a period of three (3) years following the termination of this
Agreement.
ARTICLE 13.
FINDER'S FEE
Each Party represents and warrants to the other Party that neither FSB
or any Party has incurred any obligation or liability contingent or otherwise,
for any brokers or finders fees in respect to the matters provided for in this
Agreement.
ARTICLE 14.
OPTION TO PURCHASE CUMBERLAND'S COMMON STOCK
14.1 PURCHASE OF CUMBERLAND STOCK BY LOCAL ORGANIZERS. Five individuals
who have expended considerable time and efforts in organizing a new bank in
Murray, Kentucky, Story Gibson, Jones, Xxxxx and Xxxxxx, (hereinafter "Local
Organizers") will be allowed, within 30 days of closing, to purchase $250,000.00
of Cumberland stock at a price of one and one-half times then current book value
payable immediately. The Local Organizers will receive an option from Cumberland
to purchase an additional $250,000.00 of Cumberland stock at one and one-half
times then current book value for a period of five years from the date of
receipt of charter on the following conditions:
1. In the event of announcement by Cumberland of a sale which
results in a change of ownership or control of Cumberland,
or
2. The de novo thrift bank to be established in Murray, KY has
$30,000,000.00
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in total deposits AND a ten percent (10%) return on equity
for one fiscal year's operations.
ARTICLE 15.
MISCELLANEOUS PROVISIONS
15.1 APPLICABLE LAW. This Agreement and all actions contemplated hereby
shall be interpreted and construed in accordance with the laws of the
Commonwealth of Kentucky applicable to contracts made and to be performed
entirely within such state and without giving effect to its choice of conflict
of laws rules or principles.
15.2 CONSENT TO JURISDICTION. Each of the Parties irrevocably submits
to the exclusive jurisdiction of the state courts of the Xxxxxx, Xxxxxxxx
County, Kentucky area and of any United States federal court sitting in such
state in any action or proceeding arising out of or relating to this Agreement,
and irrevocably agrees that all claims in respect of such action or proceeding
shall be heard and determined in any such state court or any such United States
federal court. Each Party further agrees that service of any process, summons,
notice or document by registered mail to the address of such Party set forth in
Section 14.4 below shall be effective service of process for any action or
proceeding brought against such Party in any such court. Each Party hereby
irrevocably and unconditionally waives any objection to the laying of venue of
any action or proceeding arising out of our relating to this Agreement in any
such court and further irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. Each Party further
agrees that a final nonappealable judgment in any such action or proceeding
shall be conclusive and may be enforced in any other jurisdictions by suit on
the judgment or in any other manner provided by law.
15.3 COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts and may be executed by facsimile. All counterparts shall
collectively constitute one and the same Agreement.
15.4 NOTICES. In any case where any notice or other communication is
required or permitted to be given to any Party hereunder, such notice or
communication shall be in writing and deemed to have been duly given and
delivered (a) if delivered in person, on the date of such delivery, (b) is sent
by confirmed facsimile transmission (with answer back received), on the date of
such facsimile transmission, or (c) if sent by overnight express or registered
or certified mail (with return receipt requested), on the date of receipt of
such mail, and shall be sent to the following address (or such other address as
such Party may designate from time to time in writing):
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If to Cumberland:
Cumberland Bancorp, Inc.
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxx
Telephone (000) 000-0000
Facsimile (000) 000-0000
Copy to:
Xxxxx, Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Murray Group:
BancKentucky, Inc.
-----------------------
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Copy to:
Hurt & Xxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
15.5 FORCE MAJEURE. Should any circumstance beyond the reasonable
control of any Party occur which delays or renders impossible the performance of
any of its obligations under this Agreement, such obligation shall be postponed
for such time as such performance necessarily has had to be suspended or delayed
on account thereof, provided such Party shall notify the other Parties in
writing within fourteen (14) days after the occurrence of such force
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majeure. In either such event, the Parties shall promptly meet to determine an
equitable solution to the effects of any such event, provided that any Party who
fails because of force majeure to perform its obligations hereunder will upon
the cessation of the force majeure take all reasonable steps within its power to
resume with the least possible delay compliance with its obligations. Events of
force majeure shall include, without limitation, war, revolution, invasion,
insurrection, riots, mob violence, sabotage or other civil disorders, acts of
God, strikes or other labor disputes, acts, laws, regulations or rules of any
government or governmental agency and any other circumstances beyond the
reasonable control of any Party, the obligations of which are affected thereby.
15.6 ASSIGNMENT; BINDING EFFECT. This Agreement shall not be assigned
by any Party, other than to a Subsidiary thereof, without the prior written
consent of the other Parties. This Agreement shall inure to the benefit of and
be binding upon each of the Parties hereto and their respective successors and
permitted assigns.
15.7 ENTIRE AGREEMENT. The terms and conditions herein contained
together with the terms and conditions of the other documents attached as
Exhibits and Schedules hereto constitute the entire agreement between and among
the Parties relating to the subject matter of this Agreement and shall supersede
all previous communications between the Parties with respect to the subject
matter of this Agreement.
15.8 EXHIBITS AND SCHEDULES. The Exhibits and Schedules attached to
this Agreement and the principles and conditions incorporated in such Exhibits
and Schedules shall be deemed integral parts of this Agreement and all
references in this Agreement to this Agreement shall encompass such Exhibits and
Schedules and the principles and conditions incorporated in such Exhibits and
Schedules.
15.9 CONFLICT. In the event of any conflict between this Agreement and
the Charter or Bylaws of the FSB, this Agreement shall control as between or
among the Parties to the extent permitted by law.
15.10 AMENDMENT. This Agreement and the Exhibits and Schedules attached
to this Agreement may be varied, amended, or extended only by the written
agreement of the Parties, executed by their duly authorized officers of
representatives, specifically referring to this Agreement.
15.11 SEVERABILITY. Any provision of this Agreement which is held
invalid, illegal, or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining provisions hereof
in such jurisdiction or rendering that or any other provision of this Agreement
invalid, illegal or unenforceable in any other jurisdiction.
15.12 HEADINGS. The descriptive headings contained in this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
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15.13 NO WAIVER OF RIGHTS. No failure or delay on the part of any Party
in the exercise of any power or right hereunder shall operate as a waiver
thereof. No single or partial exercise of any right or power hereunder shall
operate as a waiver of such right or of any other right or power. The waiver by
any Party of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any other or subsequent breach hereunder. All rights
and remedies existing under this Agreement are cumulative with, and not
exclusive of, any rights or remedies otherwise available.
15.14 RELATIONSHIP OF THE PARTIES. This Agreement shall not be deemed
to create a general partnership between or among the Parties, nor shall it
constitute any Party the agent or legal representative of any other Party.
15.15 PUBLICITY. Except as may be required by law as advised by
counsel, no Party shall issue any press release or make any public announcement
concerning this Agreement or the transactions contemplated hereby without the
prior consent of the other Parties.
15.16 EXECUTION BY THE FSB. The Parties shall cause the FSB to execute
this Agreement upon its formation and thereby be bound by the terms hereof.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first written above.
CUMBERLAND BANCORP, INC.
/s/ Xxxx Xxxxxx
----------------------------------------
XXXX XXXXXX, PRESIDENT
BANCKENTUCKY, INC.
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
XXXXXX X. XXXXXX, PRESIDENT
ACCEPTED AND AGREED TO:
THE XXXXXX BANK, FSB
BY: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
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ADDENDUM TO JOINT VENTURE AGREEMENT
This ADDENDUM TO JOINT VENTURE AGREEMENT is made as of October 31, 1998
by and between CUMBERLAND BANCORP, INC., a corporation organized and existing
under the laws of the State of Tennessee, with offices at 0000 Xxxxx Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxx 00000 and a registered bank holding company pursuant
to the Bank Holding Company Act of 1956, as amended ("Cumberland") and
BANCKENTUCKY, INC., a corporation organized and existing under the laws of the
Commonwealth of Kentucky, with offices at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000 (hereinafter referred to as the "BancKentucky").
WITNESSETH:
WHEREAS, Cumberland and BancKentucky entered into a Joint Venture
Agreement dated October 1, 1998 in order to form, own and carry out the business
of a proposed de novo federal savings bank with its main office to be located in
Xxxxxx, Xxxxxxxx County, Kentucky; and
WHEREAS, a question has arisen concerning the time requirements for
consummation of the options exerciscable pursuant to the provisions of Articles
9 and 10 of said Joint Venture Agreement; and
WHEREAS, the parties desire to clarify said time requirements for
consummation of the options exercisable pursuant to the provisions of Articles 9
and 10 of the Joint Venture Agreement by entering into this Addendum to Joint
Venture Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
agreements and covenants contained herein and contained in the above-identified
Joint Venture Agreement and in order to clarify the time requirements for
consummation of the options granted both parties in Articles 9 and 10 of said
Joint Venture Agreement, Cumberland and BancKentucky hereby agree as follows:
1. The Joint Venture Agreement previously executed by the parties is
amended by the addition of the following paragraph:
15.17 Time Periods To Consummate Option Rights Granted Parties
in Articles 9 & 10. Any and all option rights granted to the parties in
Articles 9 & 10 herein shall be exercisable within the time frame(s)
stated in said Articles, but shall be consummated within the time
frame(s) stated in said Articles or upon receipt of all necessary
regulatory approval(s), whichever occurs last.
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2. Except as specifically amended herein by the addition of the above
paragraph, the Joint Venture Agreement previously entered into by the parties
effective October 1, 1998 shall remain in full force and effect and is otherwise
unmodified as the result of the execution of this Addendum to Joint Venture
Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first written above.
CUMBERLAND BANCORP, INC.
/s/ Xxxx Xxxxxx
----------------------------------------
By: XXXX XXXXXX
Its: PRESIDENT
BANCKENTUCKY, INC.
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
BY: XXXXXX X. XXXXXX
Its: PRESIDENT
ACCEPTED AND AGREED TO:
THE XXXXXX BANK, FSB
BY: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
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