Exhibit 10 (b)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 8th day of
November , 1995 by and between MID AMERICA BANCORP, INC., a
Kentucky corporation and MID AMERICA BANK OF LOUISVILLE & TRUST
COMPANY, a Kentucky Combined Bank and Trust Company, (together with
their successors and assigns permitted under this Agreement, the
"Companies), and XXXXX XXXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Companies and the Executive are parties to an
Amended and Restated Agreement dated as of April 5, 1993, covering
the employment relationship of Executive with Companies, and
WHEREAS, the Parties desire to cancel that Agreement and
replace it in its entirety with this Employment Agreement (this
"Agreement").
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable
consideration, the receipt of which is mutually acknowledged, the
Companies and the Executive (individually a "Party" and together
the "Parties") agree as follows:
1. Definitions.
(a) "Affiliate" of a person or other entity shall mean a
person or other entity that directly or indirectly
controls, is controlled by, or is under common control
with the person or other entity specified.
(b) "Base Salary" shall mean the salary provided for in
Section 5 below or any increased salary granted to the
Executive pursuant to Section 5.
(c) "Board" shall mean the Boards of Directors of the
Companies.
(d) "Cause" shall mean:
(i) The Executive is convicted of a felony; or
(ii) The Executive is guilty of willful gross neglect or
willful gross misconduct in carrying out his duties
under this Agreement, resulting, in either case, in
material economic harm to a Company, unless the
Executive believed in good faith that such act or
nonact was in the best interests of such Company.
(e) A "Change" shall mean the occurrence of any one of the
following events:
(i) Any "person," as such term is used in Sections
3(a)(9) and 13(d)of the Securities Exchange Act of
1923, becomes a "beneficial owner,"as such term is
used in Rule 13d-3 promulgated under that Act, of
20% or more of the Voting Stock of a Company;
(ii) The majority of either Board consists of
individuals other than Incumbent Directors, which
term means the members of the Board on the date of
this Agreement; provided that any person becoming a
director subsequent to such date whose election or
nomination for election was supported by two-thirds
of the directors who then comprised the Incumbent
Directors shall be considered to be an Incumbent
Director;
(iii) A Company adopts any plan of liquidation
providing for the distribution of all or
substantially all of its assets;
(iv) All or substantially all of the assets or business
of a Company is disposed of pursuant to a merger,
consolidation or other transaction (unless the
shareholders of such Company immediately prior to
such merger, consolidation or other transaction
beneficially own, directly or indirectly, in
substantially the same proportion as they owned the
Voting Stock of such Company, all of the Voting
Stock or other ownership interests of the entity
or entities, if any, that succeed to the business
of such Company); or
(v) A Company combines with another company and is the
surviving corporation but, immediately after the
combination, the shareholders of such Company
immediately prior to the combination hold, directly
or indirectly, 50% or less of the Voting Stock of
the combined company (there being excluded from the
number of shares held by such shareholders, but not
from the Voting Stock of the combined company, any
shares received by Affiliates of such other company
in exchange for stock of such other company).
(f) "Constructive Termination Without Cause" shall mean a
termination of the Executive's employment at his
initiative as provided in Section 7(c) below following
the occurrence, without the Executive's prior written
consent, of one or more of the following events (except
in consequence of a prior termination):
(i) A reduction in the Executive's then current Base
Salary or the termination or material reduction of
any employee benefit or perquisite enjoyed by him
(other than as part of an across-the-board
reduction applicable to all executive officers of
the Companies);
(ii) The failure to elect or reelect the Executive to
any of the positions described in Section 4 below
or removal of him from any such position;
(iii) A material diminution in the Executive's
duties or the assignment to the Executive of
duties which are materially inconsistent with
his duties or which materially impair the
Executive's ability to function as the
President and as a Director of the Companies
or any other office to which he may be elected
or appointed:
(iv) The failure to continue the Executive's
participation in any incentive compensation plan
unless a plan providing a substantially similar
opportunity is substituted;
(v) The relocation of a Companies' principal office, or
the Executive's own office location as assigned to
him by a Company, to a location outside of the
metropolitan area of Louisville, Kentucky; or
(vi) The failure of a Company to obtain the assumption
in writing of its obligation to perform this
Agreement by any successor to all or substantially
all of the assets of such Company within 45 days
after a merger, consolidation, sale or similar
transaction.
(g) "Disability" shall mean the Executive's inability to
substantially perform his duties and responsibilities
under this Agreement for a period of 180 consecutive
days.
(h) "Subsidiary" of a Company shall mean any corporation of
which such Company owns, directly or indirectly, more
than 50% of the Voting Stock.
(i) "Term of Employment" shall mean the period specified in
Section 3 below.
(j) "Voting Stock" shall mean capital stock of any class or
classes having general voting power under ordinary
circumstances, in the absence of contingencies, to elect
the directors of a corporation.
2. Cancellation of Old Agreement.
The Amended and Restated Agreement between the Parties entered
into as of April 5, 1993, is hereby revoked and canceled in its
entirety.
3. Term of Employment.
The Companies hereby employ the Executive, and the Executive
hereby accepts such employment, for a five (5) year period
commencing November 8, 1995 and continuing until the termination of
his employment in accordance with the terms of this Agreement.
4. Position. Duties and Responsibilities.
(a) During the term of Employment, the Executive shall
continue to be employed as the President of the Companies
with duties commensurate with that position. The
Executive shall continue to serve as a member of the
Boards. The Executive, in carrying out his duties under
this Agreement, shall report to the Chief Executive
Officer.
(b) Anything herein to the contrary notwithstanding, nothing
shall preclude the Executive from (i) serving on the
boards of directors of a reasonable number of other
corporations (except Executive will not serve on the
board of any other financial institution) or the boards
of a reasonable number of trade associations and/or
charitable organizations, (ii) engaging in charitable
activities and community affairs, and (iii) managing his
personal investments and affairs, provided that such
activities do not materially interfere with the proper
performance of his duties and responsibilities as the
Companies' President or any other office to which he may
be elected or appointed.
(c) Anything herein to the contrary notwithstanding, nothing
shall preclude the Executive from serving on the board of
the Bankers Bank of Kentucky.
(d) Executive agrees that he will, consistent with Bank
policy, refrain during the term of his employment and
while receiving benefits hereunder from investing in any
company that is a customer of the Companies.
5. Base Salary.
The Executive shall be paid an annualized base Salary, payable
in accordance with the regular payroll practices of the Companies,
of $315,000.00. The Base Salary shall be reviewed no less
frequently than annually for increase at the sole discretion of the
Board and its Nominating and Executive Compensation Committee.
In addition, the Companies shall pay or cause to be paid to
Executive the sum of $200,000 as follows:
(i) $125,000 on the first working day of the year following
completion of five (5) years of service beginning with
the effective date of this Agreement, provided that: if
Executive fails to complete five (5) full years of
service as aforesaid, then he shall not receive the
$125,000 payment, and
(ii) if Executive completes the five years of service as
aforesaid, $25,000 per year for each full year of service
thereafter for the following three years,
except that if the Executive's employment is terminated pursuant to
Section 8(a), 8(c) or 8(d) hereof prior to the completion of five
(5) full years of service as aforesaid or prior to completion of
any of the following three years, then the Companies will pay or
cause to be paid to Executive the difference between $200,000 and
the amount previously paid hereunder upon the effective date of
such termination.
6. Employee Benefit Programs.
During the Term of Employment, the Executive shall be entitled
to participate in all employee incentive, pension and welfare
benefit plans and programs made available to the Companies' senior
level executives or to its employees generally, as such plans or
programs may be in effect from time to time, including without
limitation, annual stock option grant, ESOP, bonus, pension, profit
sharing, savings and other retirement plans or programs, medical,
dental, hospitalization, short-term and long-term disability and
life insurance plans, accidental death and dismemberment
protection, travel accident insurance, and any other pension or
retirement plans or programs and any other employee incentive
compensation plan, employee welfare benefit plans or programs that
may be sponsored by the Companies from time to time, including any
plans that supplement the above-listed types of plans or programs,
whether funded or unfunded.
7. Reimbursement of Business and Other Expenses.
The Executive is authorized to incur reasonable expenses in
carrying out his duties and responsibilities under this agreement
and the Companies shall promptly reimburse him for all business
expenses incurred in connection with carrying out the business of
the Companies, subject to documentation in accordance with the
Companies' policy.
8. Termination of Employment.
(a) Termination Due to Disability. In the event the
Executive's employment is terminated due to his
Disability, he shall be entitled in each case to the
greater of the benefits under the then current Companies
disability benefits plan or the following:
(i) An amount equal to the sum of 50% of Base Salary,
at the annual rate in effect at termination of his
employment, for a period ending with the end of the
month in which he becomes 65, less the amount of
any disability benefits provided to the Executive
by the Companies under any disability plan and
social security disability benefits;
(ii) The balance of any incentive awards earned (but not
yet paid);
(iii) The continued right to exercise any stock
option for the remainder of its term, such
option to continue to become exercisable in
accordance with the schedule set forth in the
option;
(iv) Any pension benefit that may become due pursuant to
Section 6 above;
(v) Continued accrual of credited service for the
purpose of the pension benefit provided under
Section 6 above during the period of the
Executive's Disability or, if sooner, until the
earlier of the Executive's election to commence
receiving his pension under Section 6 above or his
attainment of age 65;
(vi) Continued participation in medical, dental,
hospitalization and life insurance coverage and in
all other employee plans and programs in which he
was participating on the date of termination of his
employment due to Disability until he attains age
65; and
(vii) Other or additional benefits in accordance
with applicable plans and programs of the
Companies.
If the Executive is precluded from continuing his
participation in any employee benefit plan or program as provided
in clause (vi) above, he shall be provided the after-tax economic
equivalent of the benefits provided under the plan or program in
which he is unable to participate. The economic equivalent of any
benefit foregone shall be deemed to be the lowest cost that would
be incurred by the Executive in obtaining such benefit himself on
an individual basis.
In no event shall a termination of the Executive's employment
for Disability occur unless the Party terminating his employment
gives written notice to the other Party in accordance with Section
16 below.
(b) Termination by the Company for Cause.
(i) A termination for Cause shall not take effect
unless the provisions of this paragraph (i) are
complied with. The Executive shall be given written
notice by the Board of the intention to terminate
him for Cause, such notice (A) to state in detail
the particular act or acts or failure or failures
to act that constitute the grounds on which the
proposed termination for Cause is based and (B) to
be given within six months of the Board learning of
such act or acts or failure to act. The Executive
shall have 10 days after the date that such written
notice has been given to the Executive in which to
request a hearing before the Board. Such hearing
shall be held within 15 days of such notice to the
Executive, provided he requests such hearing.
(ii) In the event the Companies terminate the
Executive's employment for Cause, he shall be
entitled to:
(A) The Base Salary through the date of the
termination of his employment for Cause;
(B) Any incentive awards earned (but not yet
paid);
(C) Any pension benefit that may become due
pursuant to Section 6 above, determined as of
the date of such termination;
(D) Other or additional benefits in accordance
with applicable plans or programs of the
Companies to the date of termination.
(c) Termination Without Cause or Constructive Termination
Without Cause. In the event the Executive's employment is
terminated without Cause, other than due to Disability or
death, or in the event there is a Constructive
Termination Without Cause, the Executive shall be
entitled to:
(i) The Base Salary through the date of
termination of the Executive's employment;
(ii) The Base Salary, at the annualized rate in
effect on the date of termination of the
Executive's employment (or in the event a
reduction in Base Salary is the basis for a
Constructive Termination Without Cause, then
the Base Salary in effect immediately prior to
such reduction), for a period of 36 months
following such termination; provided that at
the Executive's option the Companies shall pay
him the present value of such salary
continuation payments in a lump sum (using as
the discount rate the Applicable Federal Rate
for short term Treasury obligations as
published by the Internal Revenue Service for
the month in which such termination occurs);
(iii) The balance of any incentive awards
earned (but not yet paid);
(iv) The right to exercise any stock option in
full, whether or not such right is exercisable
pursuant to the terms of the grant.
(v) Any pension benefit that may become due
pursuant to Section 6 above;
(vi) Continued accrual of credited service for the
purpose of the pension benefit provided under
Section 6 above for the period of 36 months or
his attainment of age 65, whichever shall
first occur;
(vii) Continued participation in all medical,
dental, hospitalization and life
insurance coverage and in other employee
benefit plans or programs in which he was
participating on the date of the
termination of his employment until the
earlier of:
(A) The end of the period during which he is
receiving salary continuation payments
(or in respect of which a lump-sum
severance payment is made);
(B) The date, or dates, he receives
equivalent coverage and benefits under
the plans and programs of a subsequent
employer (such coverages and benefits to
be determined on a coverage-by-coverage,
or benefit-by-benefit, basis); provided
that (x) if the Executive is precluded
from continuing his participation in any
employee benefit plan or program as
provided in this clause (vii) of this
Section 8(c), he shall be provided with
the after-tax economic equivalent of the
benefit provided under the plan or
program in which he is unable to
participate for the period specified in
this clause (vii) of this Section 8(c),
(y) the economic equivalent of any
benefit foregone shall be deemed to be
the lowest cost that would be incurred by
the Executive in obtaining such benefit
himself on an individual basis, and (z)
payment of such after-tax economic
equivalent shall be made quarterly in
advance; and
(viii) Other or additional benefits in
accordance with applicable plans and
programs of the Companies to the date of
termination.
(d) Termination of Employment Following a Change in
Control. If following a change in Control, the
Executive's employment is terminated without Cause
or there is a Constructive Termination Without
Cause, the Executive shall be entitled to the
payments and benefits provided in Section 8(c),
provided that the salary continuation payments
shall be paid in a lump sum without any discount.
Also, immediately following a Change in Control,
all amounts, entitlements or benefits in which he
is not yet vested shall become fully vested except
to the extent such vesting would be inconsistent
with the terms of the relevant plan.
(e) Voluntary Termination. In the event of a
termination of employment by the Executive on his
own initiative other than a termination due to
death or Disability or a Constructive Termination
without Cause, the Executive shall have the same
entitlements as provided in Section 8(b)(ii) for a
Termination for Cause. A voluntary termination
under this Section 8(e) shall be effective upon 30
days prior notice to a Company and shall not be
deemed a breach of this Agreement.
(f) Limitation Following a Change in Control. In the
event that the termination of the Executive's
employment is for one of the reasons set forth in
Section 8(e) above and the aggregate of all
payments or benefits made or provided to the
Executive under Section 8(d) above and under all
other plans and programs of the Companies (the
"Aggregate Payment") is determined to constitute a
Parachute Payment, as such term is defined in
Section 280G(b)(2) of the Internal Revenue Code of
1986, as amended, notwithstanding any other
provision of this Agreement to the contrary the
aggregate amount of payments or benefits paid by
the Companies to the Executive pursuant to this
Agreement, the amount to be paid to the Executive
and the time of payment pursuant to this Section
8(f) shall be adjusted so as to make such payments
fully deductible by a Company. If the parties are
unable to agree upon an Auditor to calculate such
an adjustment, then the Executive and Companies
shall each select one accounting firm and those two
firms shall jointly select the accounting firm to
serve as the Auditor.
(g) No Mitigation - No Offset. In the event of any
termination of employment under this Section 8, the
Executive shall be under no obligation to seek
other employment and there shall be no offset
against amounts due the Executive under this
Agreement on account of any remuneration
attributable to any subsequent employment that he
may obtain except as specifically provided in this
Section 8.
(h) Nature of Payments. Any amounts due under this
Section 8 are in the nature of severance payments
considered to be reasonable by the Companies and
are not in the nature of a penalty.
9. Indemnification.
(a) The Companies agree that if the Executive is made a
party, or is threatened to be made a party, to any
action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding"), by
reason of the fact that he is or was a director, officer
or employee of the Companies or is or was serving at the
request of the Companies as a director, officer, member,
employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether
or not the basis of such Proceeding is the Executive's
alleged action in an official capacity while serving as
a director, officer, member, employee or agent, the
Executive shall be indemnified and held harmless by the
Companies to the fullest extent permitted or authorized
by the Companies' certificates of incorporation or bylaws
or, if greater, by the laws of the State of Kentucky,
against all cost, expense, liability and loss (including,
without limitation, reasonable attorney's fees,
judgments, fines, ERISA fines, excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably
incurred or suffered by the Executive in connection
therewith, and such indemnification shall continue as to
the Executive even if he has ceased to be a director,
member, employee or agent of the Companies or other
entity and shall inure to the benefit of the Executive's
heirs, executors and administrators. The Companies shall
advance to the Executive all reasonable costs and
expenses incurred by him in connection with a Proceeding
within 20 days after receipt by a Company of a written
request for such advance. Such request shall include an
undertaking by the Executive to repay the amount of such
advance if it shall ultimately be determined that he is
not entitled to be indemnified against such costs and
expenses.
(b) Neither the failure of a Company (including its board of
directors, independent legal counsel or stockholders) to
have made a determination prior to the commencement of
any proceeding concerning payment of amounts claimed by
the Executive under Section 10(a) that indemnification of
the Executive is proper because he has met the applicable
standard of conduct, nor a determination by a Company
(including its board of directors, independent legal
counsel or stockholders) that the Executive has not met
such applicable standard of conduct, shall create a
presumption that the Executive has not met the applicable
standard of conduct.
(c) The Companies agree to continue and maintain a directors'
and officers' liability insurance policy covering the
Executive to the extent either Company provides such
coverage for its other executive officers.
10. Representation.
The Companies represent and warrant that they are fully
authorized and empowered to enter into this Agreement and that the
performance of their obligations under this Agreement will not
violate any agreement between it and any other person, form or
organization.
11. Entire Agreement.
This Agreement contains the entire understanding and agreement
between the Parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions,
negotiations and undertakings, whether written or oral, between the
Parties with respect thereto.
12. Amendment or Waiver.
No provision in this Agreement may be amended unless such
amendment is agreed to in writing and signed by the Executive and
an authorized officer of the Companies. No waiver by either Party
of any breach by the other Party of any condition or provision
contained in this Agreement to be performed by such other Party
shall be deemed a waiver of a similar or dissimilar condition or
provision at the same or any prior or subsequent time. Any waiver
must be in writing and signed by the Executive or an authorized
officer of the Companies, as the case may be.
13. Severability.
In the event that any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason,
in whole or in part, the remaining provisions of this Agreement
shall be unaffected thereby and shall remain in full force and
effect to the fullest extent permitted by law.
14. Survivorship.
The respective rights and obligations of the Parties hereunder
shall survive any termination of the Executive's employment to the
extent necessary to the intended preservation of such rights and
obligations.
15. Resolution of Disputes.
Any disputes arising under or in connection with this
Agreement shall, at the election of the Executive or the Companies,
be resolved by binding arbitration, to be held in Kentucky in
accordance with the rules and procedures of the American
Arbitration Association. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof. Costs of the arbitration or litigation, including, without
limitation, attorneys' fees of both Parties, shall be borne by the
Companies, provided that if the arbitrator(s) determine that the
claims or defenses of the Executive were without any reasonable
basis, each Party shall bear his or its own costs.
16. Notices.
Any notice given to a party shall be in writing and shall be
deemed to have been given when delivered personally or sent by
certified or registered mail, postage prepaid, return receipt
requested, duly addressed to the Party concerned at the address
indicated below or to such changed address as such Party may
subsequently give such notice of:
If to the Companies: Mid-America Bancorp, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx
If to the Executive: XXXXX XXXXXX
#00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx. XX 00000
17. Headings.
The headings of the sections contained in this Agreement are
for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first written above.
MID-AMERICA BANCORP, INC.
By: /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Title: Chairman of the Board
MID-AMERICA BANK OF LOUISVILLE &
TRUST COMPANY
By: /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Title: Chairman of the Board
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
Exhibit 10 (d)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 8th day of
November , 1995 by and between MID AMERICA BANCORP, INC., a
Kentucky corporation and MID AMERICA BANK OF LOUISVILLE & TRUST
COMPANY, a Kentucky Combined Bank and Trust Company, (together with
their successors and assigns permitted under this Agreement, the
"Companies), and XXXXX XXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Companies and the Executive are parties to an
Amended and Restated Agreement dated as of April 5, 1993, covering
the employment relationship of Executive with Companies, and
WHEREAS, the Parties desire to cancel that Agreement and
replace it in its entirety with this Employment Agreement (this
"Agreement").
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable
consideration, the receipt of which is mutually acknowledged, the
Companies and the Executive (individually a "Party" and together
the "Parties") agree as follows:
1. Definitions.
(a) "Affiliate" of a person or other entity shall mean a
person or other entity that directly or indirectly
controls, is controlled by, or is under common control
with the person or other entity specified.
(b) "Base Salary" shall mean the salary provided for in
Section 5 below or any increased salary granted to the
Executive pursuant to Section 5.
(c) "Board" shall mean the Boards of Directors of the
Companies.
(d) "Cause" shall mean:
(i) The Executive is convicted of a felony; or
(ii) The Executive is guilty of willful gross neglect or
willful gross misconduct in carrying out his duties
under this Agreement, resulting, in either case, in
material economic harm to a Company, unless the
Executive believed in good faith that such act or
nonact was in the best interests of such Company.
(e) A "Change" shall mean the occurrence of any one of the
following events:
(i) Any "person," as such term is used in Sections
3(a)(9) and 13(d)of the Securities Exchange Act of
1923, becomes a "beneficial owner,"as such term is
used in Rule 13d-3 promulgated under that Act, of
20% or more of the Voting Stock of a Company;
(ii) The majority of either Board consists of
individuals other than Incumbent Directors, which
term means the members of the Board on the date of
this Agreement; provided that any person becoming a
director subsequent to such date whose election or
nomination for election was supported by two-thirds
of the directors who then comprised the Incumbent
Directors shall be considered to be an Incumbent
Director;
(iii) A Company adopts any plan of liquidation
providing for the distribution of all or
substantially all of its assets;
(iv) All or substantially all of the assets or business
of a Company is disposed of pursuant to a merger,
consolidation or other transaction (unless the
shareholders of such Company immediately prior to
such merger, consolidation or other transaction
beneficially own, directly or indirectly, in
substantially the same proportion as they owned the
Voting Stock of such Company, all of the Voting
Stock or other ownership interests of the entity
or entities, if any, that succeed to the business
of such Company); or
(v) A Company combines with another company and is the
surviving corporation but, immediately after the
combination, the shareholders of such Company
immediately prior to the combination hold, directly
or indirectly, 50% or less of the Voting Stock of
the combined company (there being excluded from the
number of shares held by such shareholders, but not
from the Voting Stock of the combined company, any
shares received by Affiliates of such other company
in exchange for stock of such other company).
(f) "Constructive Termination Without Cause" shall mean a
termination of the Executive's employment at his
initiative as provided in Section 7(c) below following
the occurrence, without the Executive's prior written
consent, of one or more of the following events (except
in consequence of a prior termination):
(i) A reduction in the Executive's then current Base
Salary or the termination or material reduction of
any employee benefit or perquisite enjoyed by him
(other than as part of an across-the-board
reduction applicable to all executive officers of
the Companies);
(ii) The failure to elect or reelect the Executive to
any of the positions described in Section 4 below
or removal of him from any such position;
(iii) A material diminution in the Executive's
duties or the assignment to the Executive of
duties which are materially inconsistent with
his duties or which materially impair the
Executive's ability to function as Executive
Vice President or any other office to which he
may be elected or appointed:
(iv) The failure to continue the Executive's
participation in any incentive compensation plan
unless a plan providing a substantially similar
opportunity is substituted;
(v) The relocation of a Companies' principal office, or
the Executive's own office location as assigned to
him by a Company, to a location outside of the
metropolitan area of Louisville, Kentucky; or
(vi) The failure of a Company to obtain the assumption
in writing of its obligation to perform this
Agreement by any successor to all or substantially
all of the assets of such Company within 45 days
after a merger, consolidation, sale or similar
transaction.
(g) "Disability" shall mean the Executive's inability to
substantially perform his duties and responsibilities
under this Agreement for a period of 180 consecutive
days.
(h) "Subsidiary" of a Company shall mean any corporation of
which such Company owns, directly or indirectly, more
than 50% of the Voting Stock.
(i) "Term of Employment" shall mean the period specified in
Section 3 below.
(j) "Voting Stock" shall mean capital stock of any class or
classes having general voting power under ordinary
circumstances, in the absence of contingencies, to elect
the directors of a corporation.
2. Cancellation of Old Agreement.
The Amended and Restated Agreement between the Parties entered
into as of April 5, 1993, is hereby revoked and canceled in its
entirety.
3. Term of Employment.
The Companies hereby employ the Executive, and the Executive
hereby accepts such employment, for a five (5) year period
commencing November 8, 1995 and continuing until the termination of
his employment in accordance with the terms of this Agreement.
4. Position. Duties and Responsibilities.
(a) During the term of Employment, the Executive shall
continue to be employed as Executive Vice President of
the Companies with duties commensurate with that
position. The Executive, in carrying out his duties under
this Agreement, shall report to the Chief Executive
Officer.
(b) Anything herein to the contrary notwithstanding, nothing
shall preclude the Executive from (i) serving on the
boards of directors of a reasonable number of other
corporations (except Executive will not serve on the
board of any other financial institution) or the boards
of a reasonable number of trade associations and/or
charitable organizations, (ii) engaging in charitable
activities and community affairs, and (iii) managing his
personal investments and affairs, provided that such
activities do not materially interfere with the proper
performance of his duties and responsibilities as the
Companies' Executive Vice President or any other office
to which he may be elected or appointed.
(c) Executive agrees that he will, consistent with Bank
policy, refrain during the term of his employment and
while receiving benefits hereunder from investing in any
company that is a customer of the Companies.
5. Base Salary.
The Executive shall be paid an annualized base Salary, payable
in accordance with the regular payroll practices of the Companies,
of $132,000.00. The Base Salary shall be reviewed no less
frequently than annually for increase at the sole discretion of the
Board and its Nominating and Executive Compensation Committee.
6. Employee Benefit Programs.
During the Term of Employment, the Executive shall be entitled
to participate in all employee incentive, pension and welfare
benefit plans and programs made available to the Companies' senior
level executives or to its employees generally, as such plans or
programs may be in effect from time to time, including without
limitation, annual stock option grant, ESOP, bonus, pension, profit
sharing, savings and other retirement plans or programs, medical,
dental, hospitalization, short-term and long-term disability and
life insurance plans, accidental death and dismemberment
protection, travel accident insurance, and any other pension or
retirement plans or programs and any other employee incentive
compensation plan, employee welfare benefit plans or programs that
may be sponsored by the Companies from time to time, including any
plans that supplement the above-listed types of plans or programs,
whether funded or unfunded.
7. Reimbursement of Business and Other Expenses.
The Executive is authorized to incur reasonable expenses in
carrying out his duties and responsibilities under this agreement
and the Companies shall promptly reimburse him for all business
expenses incurred in connection with carrying out the business of
the Companies, subject to documentation in accordance with the
Companies' policy.
8. Termination of Employment.
(a) Termination by the Company for Cause.
(i) A termination for Cause shall not take effect
unless the provisions of this paragraph (i) are
complied with. The Executive shall be given written
notice by the Board of the intention to terminate
him for Cause, such notice (A) to state in detail
the particular act or acts or failure or failures
to act that constitute the grounds on which the
proposed termination for Cause is based and (B) to
be given within six months of the Board learning of
such act or acts or failure to act. The Executive
shall have 10 days after the date that such written
notice has been given to the Executive in which to
request a hearing before the Board. Such hearing
shall be held within 15 days of such notice to the
Executive, provided he requests such hearing.
(ii) In the event the Companies terminate the
Executive's employment for Cause, he shall be
entitled to:
(A) The Base Salary through the date of the
termination of his employment for Cause;
(B) Any incentive awards earned (but not yet
paid);
(C) Any pension benefit that may become due
pursuant to Section 6 above, determined as of
the date of such termination;
(D) Other or additional benefits in accordance
with applicable plans or programs of the
Companies to the date of termination.
(b) Termination Without Cause or Constructive Termination
Without Cause. In the event the Executive's employment is
terminated without Cause, other than due to Disability or
death, or in the event there is a Constructive
Termination Without Cause, the Executive shall be
entitled to:
(i) The Base Salary through the date of
termination of the Executive's employment;
(ii) The Base Salary, at the annualized rate in
effect on the date of termination of the
Executive's employment (or in the event a
reduction in Base Salary is the basis for a
Constructive Termination Without Cause, then
the Base Salary in effect immediately prior to
such reduction), for a period of 36 months
following such termination; provided that at
the Executive's option the Companies shall pay
him the present value of such salary
continuation payments in a lump sum (using as
the discount rate the Applicable Federal Rate
for short term Treasury obligations as
published by the Internal Revenue Service for
the month in which such termination occurs);
(iii) The balance of any incentive awards
earned (but not yet paid);
(iv) The right to exercise any stock option in
full, whether or not such right is exercisable
pursuant to the terms of the grant.
(v) Any pension benefit that may become due
pursuant to Section 6 above;
(vi) Continued accrual of credited service for the
purpose of the pension benefit provided under
Section 6 above for the period of 36 months or
his attainment of age 65, whichever shall
first occur;
(vii) Continued participation in all medical,
dental, hospitalization and life
insurance coverage and in other employee
benefit plans or programs in which he was
participating on the date of the
termination of his employment until the
earlier of:
(A) The end of the period during which he is
receiving salary continuation payments
(or in respect of which a lump-sum
severance payment is made);
(B) The date, or dates, he receives
equivalent coverage and benefits under
the plans and programs of a subsequent
employer (such coverages and benefits to
be determined on a coverage-by-coverage,
or benefit-by-benefit, basis); provided
that (x) if the Executive is precluded
from continuing his participation in any
employee benefit plan or program as
provided in this clause (vii) of this
Section 8(c), he shall be provided with
the after-tax economic equivalent of the
benefit provided under the plan or
program in which he is unable to
participate for the period specified in
this clause (vii) of this Section 8(c),
(y) the economic equivalent of any
benefit foregone shall be deemed to be
the lowest cost that would be incurred by
the Executive in obtaining such benefit
himself on an individual basis, and (z)
payment of such after-tax economic
equivalent shall be made quarterly in
advance; and
(viii) Other or additional benefits in
accordance with applicable plans and
programs of the Companies to the date of
termination.
(c) Termination of Employment Following a Change in
Control. If following a change in Control, the
Executive's employment is terminated without Cause
or there is a Constructive Termination Without
Cause, the Executive shall be entitled to the
payments and benefits provided in Section 8(c),
provided that the salary continuation payments
shall be paid in a lump sum without any discount.
Also, immediately following a Change in Control,
all amounts, entitlements or benefits in which he
is not yet vested shall become fully vested except
to the extent such vesting would be inconsistent
with the terms of the relevant plan.
(d) Voluntary Termination. In the event of a
termination of employment by the Executive on his
own initiative other than a termination due to
death or Disability or a Constructive Termination
without Cause, the Executive shall have the same
entitlements as provided in Section 8(b)(ii) for a
Termination for Cause. A voluntary termination
under this Section 8(d) shall be effective upon 30
days prior notice to a Company and shall not be
deemed a breach of this Agreement.
(e) Limitation Following a Change in Control. In the
event that the termination of the Executive's
employment is for one of the reasons set forth in
Section 8(d) above and the aggregate of all
payments or benefits made or provided to the
Executive under Section 8(c) above and under all
other plans and programs of the Companies (the
"Aggregate Payment") is determined to constitute a
Parachute Payment, as such term is defined in
Section 280G(b)(2) of the Internal Revenue Code of
1986, as amended, notwithstanding any other
provision of this Agreement to the contrary the
aggregate amount of payments or benefits paid by
the Companies to the Executive pursuant to this
Agreement, the amount to be paid to the Executive
and the time of payment pursuant to this Section
8(e) shall be adjusted so as to make such payments
fully deductible by a Company. If the parties are
unable to agree upon an Auditor to calculate such
an adjustment, then the Executive and Companies
shall each select one accounting firm and those two
firms shall jointly select the accounting firm to
serve as the Auditor.
(f) No Mitigation - No Offset. In the event of any
termination of employment under this Section 8, the
Executive shall be under no obligation to seek
other employment and there shall be no offset
against amounts due the Executive under this
Agreement on account of any remuneration
attributable to any subsequent employment that he
may obtain except as specifically provided in this
Section 8.
(h) Nature of Payments. Any amounts due under this
Section 8 are in the nature of severance payments
considered to be reasonable by the Companies and
are not in the nature of a penalty.
9. Indemnification.
(a) The Companies agree that if the Executive is made a
party, or is threatened to be made a party, to any
action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding"), by
reason of the fact that he is or was a director, officer
or employee of the Companies or is or was serving at the
request of the Companies as a director, officer, member,
employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether
or not the basis of such Proceeding is the Executive's
alleged action in an official capacity while serving as
a director, officer, member, employee or agent, the
Executive shall be indemnified and held harmless by the
Companies to the fullest extent permitted or authorized
by the Companies' certificates of incorporation or bylaws
or, if greater, by the laws of the State of Kentucky,
against all cost, expense, liability and loss (including,
without limitation, reasonable attorney's fees,
judgments, fines, ERISA fines, excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably
incurred or suffered by the Executive in connection
therewith, and such indemnification shall continue as to
the Executive even if he has ceased to be a director,
member, employee or agent of the Companies or other
entity and shall inure to the benefit of the Executive's
heirs, executors and administrators. The Companies shall
advance to the Executive all reasonable costs and
expenses incurred by him in connection with a Proceeding
within 20 days after receipt by a Company of a written
request for such advance. Such request shall include an
undertaking by the Executive to repay the amount of such
advance if it shall ultimately be determined that he is
not entitled to be indemnified against such costs and
expenses.
(b) Neither the failure of a Company (including its board of
directors, independent legal counsel or stockholders) to
have made a determination prior to the commencement of
any proceeding concerning payment of amounts claimed by
the Executive under Section 9(a) that indemnification of
the Executive is proper because he has met the applicable
standard of conduct, nor a determination by a Company
(including its board of directors, independent legal
counsel or stockholders) that the Executive has not met
such applicable standard of conduct, shall create a
presumption that the Executive has not met the applicable
standard of conduct.
(c) The Companies agree to continue and maintain a directors'
and officers' liability insurance policy covering the
Executive to the extent either Company provides such
coverage for its other executive officers.
10. Representation.
The Companies represent and warrant that they are fully
authorized and empowered to enter into this Agreement and that the
performance of their obligations under this Agreement will not
violate any agreement between it and any other person, form or
organization.
11. Entire Agreement.
This Agreement contains the entire understanding and agreement
between the Parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions,
negotiations and undertakings, whether written or oral, between the
Parties with respect thereto.
12. Amendment or Waiver.
No provision in this Agreement may be amended unless such
amendment is agreed to in writing and signed by the Executive and
an authorized officer of the Companies. No waiver by either Party
of any breach by the other Party of any condition or provision
contained in this Agreement to be performed by such other Party
shall be deemed a waiver of a similar or dissimilar condition or
provision at the same or any prior or subsequent time. Any waiver
must be in writing and signed by the Executive or an authorized
officer of the Companies, as the case may be.
13. Severability.
In the event that any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason,
in whole or in part, the remaining provisions of this Agreement
shall be unaffected thereby and shall remain in full force and
effect to the fullest extent permitted by law.
14. Survivorship.
The respective rights and obligations of the Parties hereunder
shall survive any termination of the Executive's employment to the
extent necessary to the intended preservation of such rights and
obligations.
15. Resolution of Disputes.
Any disputes arising under or in connection with this
Agreement shall, at the election of the Executive or the Companies,
be resolved by binding arbitration, to be held in Kentucky in
accordance with the rules and procedures of the American
Arbitration Association. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof. Costs of the arbitration or litigation, including, without
limitation, attorneys' fees of both Parties, shall be borne by the
Companies, provided that if the arbitrator(s) determine that the
claims or defenses of the Executive were without any reasonable
basis, each Party shall bear his or its own costs.
16. Notices.
Any notice given to a party shall be in writing and shall be
deemed to have been given when delivered personally or sent by
certified or registered mail, postage prepaid, return receipt
requested, duly addressed to the Party concerned at the address
indicated below or to such changed address as such Party may
subsequently give such notice of:
If to the Companies: Mid-America Bancorp, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx
If to the Executive: Xxxxx Xxxxx
0000 Xxxxxxxx Xxxxx Xxxxxx
Xxxxxxxxxx. XX 00000
17. Headings.
The headings of the sections contained in this Agreement are
for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first written above.
MID-AMERICA BANCORP, INC.
By: /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Title: Chairman of the Board
MID-AMERICA BANK OF LOUISVILLE &
TRUST COMPANY
By: /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Title: Chairman of the Board
/s/ Xxxxx Xxxxx
XXXXX XXXXX
Exhibit 10 (e)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 8th day of
November , 1995 by and between MID AMERICA BANCORP, INC., a
Kentucky corporation and MID AMERICA BANK OF LOUISVILLE & TRUST
COMPANY, a Kentucky Combined Bank and Trust Company, (together with
their successors and assigns permitted under this Agreement, the
"Companies), and XXXXXXX XXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Companies and the Executive are parties to an
Amended and Restated Agreement dated as of April 5, 1993, covering
the employment relationship of Executive with Companies, and
WHEREAS, the Parties desire to cancel that Agreement and
replace it in its entirety with this Employment Agreement (this
"Agreement").
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable
consideration, the receipt of which is mutually acknowledged, the
Companies and the Executive (individually a "Party" and together
the "Parties") agree as follows:
1. Definitions.
(a) "Affiliate" of a person or other entity shall mean a
person or other entity that directly or indirectly
controls, is controlled by, or is under common control
with the person or other entity specified.
(b) "Base Salary" shall mean the salary provided for in
Section 5 below or any increased salary granted to the
Executive pursuant to Section 5.
(c) "Board" shall mean the Boards of Directors of the
Companies.
(d) "Cause" shall mean:
(i) The Executive is convicted of a felony; or
(ii) The Executive is guilty of willful gross neglect or
willful gross misconduct in carrying out his duties
under this Agreement, resulting, in either case, in
material economic harm to a Company, unless the
Executive believed in good faith that such act or
nonact was in the best interests of such Company.
(e) A "Change" shall mean the occurrence of any one of the
following events:
(i) Any "person," as such term is used in Sections
3(a)(9) and 13(d)of the Securities Exchange Act of
1923, becomes a "beneficial owner,"as such term is
used in Rule 13d-3 promulgated under that Act, of
20% or more of the Voting Stock of a Company;
(ii) The majority of either Board consists of
individuals other than Incumbent Directors, which
term means the members of the Board on the date of
this Agreement; provided that any person becoming a
director subsequent to such date whose election or
nomination for election was supported by two-thirds
of the directors who then comprised the Incumbent
Directors shall be considered to be an Incumbent
Director;
(iii) A Company adopts any plan of liquidation
providing for the distribution of all or
substantially all of its assets;
(iv) All or substantially all of the assets or business
of a Company is disposed of pursuant to a merger,
consolidation or other transaction (unless the
shareholders of such Company immediately prior to
such merger, consolidation or other transaction
beneficially own, directly or indirectly, in
substantially the same proportion as they owned the
Voting Stock of such Company, all of the Voting
Stock or other ownership interests of the entity
or entities, if any, that succeed to the business
of such Company); or
(v) A Company combines with another company and is the
surviving corporation but, immediately after the
combination, the shareholders of such Company
immediately prior to the combination hold, directly
or indirectly, 50% or less of the Voting Stock of
the combined company (there being excluded from the
number of shares held by such shareholders, but not
from the Voting Stock of the combined company, any
shares received by Affiliates of such other company
in exchange for stock of such other company).
(f) "Constructive Termination Without Cause" shall mean a
termination of the Executive's employment at his
initiative as provided in Section 7(c) below following
the occurrence, without the Executive's prior written
consent, of one or more of the following events (except
in consequence of a prior termination):
(i) A reduction in the Executive's then current Base
Salary or the termination or material reduction of
any employee benefit or perquisite enjoyed by him
(other than as part of an across-the-board
reduction applicable to all executive officers of
the Companies);
(ii) The failure to elect or reelect the Executive to
any of the positions described in Section 4 below
or removal of him from any such position;
(iii) A material diminution in the Executive's
duties or the assignment to the Executive of
duties which are materially inconsistent with
his duties or which materially impair the
Executive's ability to function as Executive
Vice President or any other office to which he
may be elected or appointed:
(iv) The failure to continue the Executive's
participation in any incentive compensation plan
unless a plan providing a substantially similar
opportunity is substituted;
(v) The relocation of a Companies' principal office, or
the Executive's own office location as assigned to
him by a Company, to a location outside of the
metropolitan area of Louisville, Kentucky; or
(vi) The failure of a Company to obtain the assumption
in writing of its obligation to perform this
Agreement by any successor to all or substantially
all of the assets of such Company within 45 days
after a merger, consolidation, sale or similar
transaction.
(g) "Disability" shall mean the Executive's inability to
substantially perform his duties and responsibilities
under this Agreement for a period of 180 consecutive
days.
(h) "Subsidiary" of a Company shall mean any corporation of
which such Company owns, directly or indirectly, more
than 50% of the Voting Stock.
(i) "Term of Employment" shall mean the period specified in
Section 3 below.
(j) "Voting Stock" shall mean capital stock of any class or
classes having general voting power under ordinary
circumstances, in the absence of contingencies, to elect
the directors of a corporation.
2. Cancellation of Old Agreement.
The Amended and Restated Agreement between the Parties entered
into as of April 5, 1993, is hereby revoked and canceled in its
entirety.
3. Term of Employment.
The Companies hereby employ the Executive, and the Executive
hereby accepts such employment, for a five (5) year period
commencing November 8, 1995 and continuing until the termination of
his employment in accordance with the terms of this Agreement.
4. Position. Duties and Responsibilities.
(a) During the term of Employment, the Executive shall
continue to be employed as Executive Vice President of
the Companies with duties commensurate with that
position. The Executive, in carrying out his duties under
this Agreement, shall report to the Chief Executive
Officer.
(b) Anything herein to the contrary notwithstanding, nothing
shall preclude the Executive from (i) serving on the
boards of directors of a reasonable number of other
corporations (except Executive will not serve on the
board of any other financial institution) or the boards
of a reasonable number of trade associations and/or
charitable organizations, (ii) engaging in charitable
activities and community affairs, and (iii) managing his
personal investments and affairs, provided that such
activities do not materially interfere with the proper
performance of his duties and responsibilities as the
Companies' Executive Vice President or any other office
to which he may be elected or appointed.
(c) Executive agrees that he will, consistent with Bank
policy, refrain during the term of his employment and
while receiving benefits hereunder from investing in any
company that is a customer of the Companies.
5. Base Salary.
The Executive shall be paid an annualized base Salary, payable
in accordance with the regular payroll practices of the Companies,
of $115,500.00. The Base Salary shall be reviewed no less
frequently than annually for increase at the sole discretion of the
Board and its Nominating and Executive Compensation Committee.
6. Employee Benefit Programs.
During the Term of Employment, the Executive shall be entitled
to participate in all employee incentive, pension and welfare
benefit plans and programs made available to the Companies' senior
level executives or to its employees generally, as such plans or
programs may be in effect from time to time, including without
limitation, annual stock option grant, ESOP, bonus, pension, profit
sharing, savings and other retirement plans or programs, medical,
dental, hospitalization, short-term and long-term disability and
life insurance plans, accidental death and dismemberment
protection, travel accident insurance, and any other pension or
retirement plans or programs and any other employee incentive
compensation plan, employee welfare benefit plans or programs that
may be sponsored by the Companies from time to time, including any
plans that supplement the above-listed types of plans or programs,
whether funded or unfunded.
7. Reimbursement of Business and Other Expenses.
The Executive is authorized to incur reasonable expenses in
carrying out his duties and responsibilities under this agreement
and the Companies shall promptly reimburse him for all business
expenses incurred in connection with carrying out the business of
the Companies, subject to documentation in accordance with the
Companies' policy.
8. Termination of Employment.
(a) Termination by the Company for Cause.
(i) A termination for Cause shall not take effect
unless the provisions of this paragraph (i) are
complied with. The Executive shall be given written
notice by the Board of the intention to terminate
him for Cause, such notice (A) to state in detail
the particular act or acts or failure or failures
to act that constitute the grounds on which the
proposed termination for Cause is based and (B) to
be given within six months of the Board learning of
such act or acts or failure to act. The Executive
shall have 10 days after the date that such written
notice has been given to the Executive in which to
request a hearing before the Board. Such hearing
shall be held within 15 days of such notice to the
Executive, provided he requests such hearing.
(ii) In the event the Companies terminate the
Executive's employment for Cause, he shall be
entitled to:
(A) The Base Salary through the date of the
termination of his employment for Cause;
(B) Any incentive awards earned (but not yet
paid);
(C) Any pension benefit that may become due
pursuant to Section 6 above, determined as of
the date of such termination;
(D) Other or additional benefits in accordance
with applicable plans or programs of the
Companies to the date of termination.
(b) Termination Without Cause or Constructive Termination
Without Cause. In the event the Executive's employment is
terminated without Cause, other than due to Disability or
death, or in the event there is a Constructive
Termination Without Cause, the Executive shall be
entitled to:
(i) The Base Salary through the date of
termination of the Executive's employment;
(ii) The Base Salary, at the annualized rate in
effect on the date of termination of the
Executive's employment (or in the event a
reduction in Base Salary is the basis for a
Constructive Termination Without Cause, then
the Base Salary in effect immediately prior to
such reduction), for a period of 36 months
following such termination; provided that at
the Executive's option the Companies shall pay
him the present value of such salary
continuation payments in a lump sum (using as
the discount rate the Applicable Federal Rate
for short term Treasury obligations as
published by the Internal Revenue Service for
the month in which such termination occurs);
(iii) The balance of any incentive awards
earned (but not yet paid);
(iv) The right to exercise any stock option in
full, whether or not such right is exercisable
pursuant to the terms of the grant.
(v) Any pension benefit that may become due
pursuant to Section 6 above;
(vi) Continued accrual of credited service for the
purpose of the pension benefit provided under
Section 6 above for the period of 36 months or
his attainment of age 65, whichever shall
first occur;
(vii) Continued participation in all medical,
dental, hospitalization and life
insurance coverage and in other employee
benefit plans or programs in which he was
participating on the date of the
termination of his employment until the
earlier of:
(A) The end of the period during which he is
receiving salary continuation payments
(or in respect of which a lump-sum
severance payment is made);
(B) The date, or dates, he receives
equivalent coverage and benefits under
the plans and programs of a subsequent
employer (such coverages and benefits to
be determined on a coverage-by-coverage,
or benefit-by-benefit, basis); provided
that (x) if the Executive is precluded
from continuing his participation in any
employee benefit plan or program as
provided in this clause (vii) of this
Section 8(c), he shall be provided with
the after-tax economic equivalent of the
benefit provided under the plan or
program in which he is unable to
participate for the period specified in
this clause (vii) of this Section 8(c),
(y) the economic equivalent of any
benefit foregone shall be deemed to be
the lowest cost that would be incurred by
the Executive in obtaining such benefit
himself on an individual basis, and (z)
payment of such after-tax economic
equivalent shall be made quarterly in
advance; and
(viii) Other or additional benefits in
accordance with applicable plans and
programs of the Companies to the date of
termination.
(c) Termination of Employment Following a Change in
Control. If following a change in Control, the
Executive's employment is terminated without Cause
or there is a Constructive Termination Without
Cause, the Executive shall be entitled to the
payments and benefits provided in Section 8(c),
provided that the salary continuation payments
shall be paid in a lump sum without any discount.
Also, immediately following a Change in Control,
all amounts, entitlements or benefits in which he
is not yet vested shall become fully vested except
to the extent such vesting would be inconsistent
with the terms of the relevant plan.
(d) Voluntary Termination. In the event of a
termination of employment by the Executive on his
own initiative other than a termination due to
death or Disability or a Constructive Termination
without Cause, the Executive shall have the same
entitlements as provided in Section 8(b)(ii) for a
Termination for Cause. A voluntary termination
under this Section 8(d) shall be effective upon 30
days prior notice to a Company and shall not be
deemed a breach of this Agreement.
(e) Limitation Following a Change in Control. In the
event that the termination of the Executive's
employment is for one of the reasons set forth in
Section 8(d) above and the aggregate of all
payments or benefits made or provided to the
Executive under Section 8(c) above and under all
other plans and programs of the Companies (the
"Aggregate Payment") is determined to constitute a
Parachute Payment, as such term is defined in
Section 280G(b)(2) of the Internal Revenue Code of
1986, as amended, notwithstanding any other
provision of this Agreement to the contrary the
aggregate amount of payments or benefits paid by
the Companies to the Executive pursuant to this
Agreement, the amount to be paid to the Executive
and the time of payment pursuant to this Section
8(e) shall be adjusted so as to make such payments
fully deductible by a Company. If the parties are
unable to agree upon an Auditor to calculate such
an adjustment, then the Executive and Companies
shall each select one accounting firm and those two
firms shall jointly select the accounting firm to
serve as the Auditor.
(f) No Mitigation - No Offset. In the event of any
termination of employment under this Section 8, the
Executive shall be under no obligation to seek
other employment and there shall be no offset
against amounts due the Executive under this
Agreement on account of any remuneration
attributable to any subsequent employment that he
may obtain except as specifically provided in this
Section 8.
(h) Nature of Payments. Any amounts due under this
Section 8 are in the nature of severance payments
considered to be reasonable by the Companies and
are not in the nature of a penalty.
9. Indemnification.
(a) The Companies agree that if the Executive is made a
party, or is threatened to be made a party, to any
action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding"), by
reason of the fact that he is or was a director, officer
or employee of the Companies or is or was serving at the
request of the Companies as a director, officer, member,
employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether
or not the basis of such Proceeding is the Executive's
alleged action in an official capacity while serving as
a director, officer, member, employee or agent, the
Executive shall be indemnified and held harmless by the
Companies to the fullest extent permitted or authorized
by the Companies' certificates of incorporation or bylaws
or, if greater, by the laws of the State of Kentucky,
against all cost, expense, liability and loss (including,
without limitation, reasonable attorney's fees,
judgments, fines, ERISA fines, excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably
incurred or suffered by the Executive in connection
therewith, and such indemnification shall continue as to
the Executive even if he has ceased to be a director,
member, employee or agent of the Companies or other
entity and shall inure to the benefit of the Executive's
heirs, executors and administrators. The Companies shall
advance to the Executive all reasonable costs and
expenses incurred by him in connection with a Proceeding
within 20 days after receipt by a Company of a written
request for such advance. Such request shall include an
undertaking by the Executive to repay the amount of such
advance if it shall ultimately be determined that he is
not entitled to be indemnified against such costs and
expenses.
(b) Neither the failure of a Company (including its board of
directors, independent legal counsel or stockholders) to
have made a determination prior to the commencement of
any proceeding concerning payment of amounts claimed by
the Executive under Section 9(a) that indemnification of
the Executive is proper because he has met the applicable
standard of conduct, nor a determination by a Company
(including its board of directors, independent legal
counsel or stockholders) that the Executive has not met
such applicable standard of conduct, shall create a
presumption that the Executive has not met the applicable
standard of conduct.
(c) The Companies agree to continue and maintain a directors'
and officers' liability insurance policy covering the
Executive to the extent either Company provides such
coverage for its other executive officers.
10. Representation.
The Companies represent and warrant that they are fully
authorized and empowered to enter into this Agreement and that the
performance of their obligations under this Agreement will not
violate any agreement between it and any other person, form or
organization.
11. Entire Agreement.
This Agreement contains the entire understanding and agreement
between the Parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions,
negotiations and undertakings, whether written or oral, between the
Parties with respect thereto.
12. Amendment or Waiver.
No provision in this Agreement may be amended unless such
amendment is agreed to in writing and signed by the Executive and
an authorized officer of the Companies. No waiver by either Party
of any breach by the other Party of any condition or provision
contained in this Agreement to be performed by such other Party
shall be deemed a waiver of a similar or dissimilar condition or
provision at the same or any prior or subsequent time. Any waiver
must be in writing and signed by the Executive or an authorized
officer of the Companies, as the case may be.
13. Severability.
In the event that any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason,
in whole or in part, the remaining provisions of this Agreement
shall be unaffected thereby and shall remain in full force and
effect to the fullest extent permitted by law.
14. Survivorship.
The respective rights and obligations of the Parties hereunder
shall survive any termination of the Executive's employment to the
extent necessary to the intended preservation of such rights and
obligations.
15. Resolution of Disputes.
Any disputes arising under or in connection with this
Agreement shall, at the election of the Executive or the Companies,
be resolved by binding arbitration, to be held in Kentucky in
accordance with the rules and procedures of the American
Arbitration Association. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof. Costs of the arbitration or litigation, including, without
limitation, attorneys' fees of both Parties, shall be borne by the
Companies, provided that if the arbitrator(s) determine that the
claims or defenses of the Executive were without any reasonable
basis, each Party shall bear his or its own costs.
16. Notices.
Any notice given to a party shall be in writing and shall be
deemed to have been given when delivered personally or sent by
certified or registered mail, postage prepaid, return receipt
requested, duly addressed to the Party concerned at the address
indicated below or to such changed address as such Party may
subsequently give such notice of:
If to the Companies: Mid-America Bancorp, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx
If to the Executive: Xxxxxxx Xxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx. XX 00000
17. Headings.
The headings of the sections contained in this Agreement are
for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first written above.
MID-AMERICA BANCORP, INC.
By: /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Title: Chairman of the Board
MID-AMERICA BANK OF LOUISVILLE &
TRUST COMPANY
By: /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Title: Chairman of the Board
/s/ Xxxxxxx Xxxxx
XXXXXXX XXXXX
Exhibit 10 (f)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of March
, 1996 by and between MID AMERICA BANCORP, INC., a Kentucky
corporation and MID AMERICA BANK OF LOUISVILLE & TRUST COMPANY, a
Kentucky Combined Bank and Trust Company, (together with their
successors and assigns permitted under this Agreement, the
"Companies), and XXXXXX X. XXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Companies and the Executive are parties to an
Amended and Restated Agreement dated as of April 5, 1993, covering
the employment relationship of Executive with Companies, and
WHEREAS, the Parties desire to cancel that Agreement and replace
it in its entirety with this Employment Agreement (this "Agreement").
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable
consideration, the receipt of which is mutually acknowledged, the
Companies and the Executive (individually a "Party" and together the
"Parties") agree as follows:
1. Definitions.
(a) "Affiliate" of a person or other entity shall mean a person
or other entity that directly or indirectly controls, is
controlled by, or is under common control with the person
or other entity specified.
(b) Except as provided in Section 8 hereof, "Base Salary" shall
mean the salary provided for in Section 5 below or any
increased salary granted to the Executive pursuant to
Section 5.
(c) "Board" shall mean the Boards of Directors of the
Companies.
(d) "Cause" shall mean:
(i) The Executive is convicted of a felony; or
(ii) The Executive is guilty of willful gross neglect or
willful gross misconduct in carrying out his duties
under this Agreement, resulting, in either case, in
material economic harm to a Company, unless the
Executive believed in good faith that such act or
nonact was in the best interests of such Company.
(e) A "Change of Control" shall mean the occurrence of any one
of the following events:
(i) Xxxxxxx X. Xxxxx ceases to be Chairman of the
Companies at any time prior to January 1, 1999;
(ii) Any "person," as such term is used in Sections
3(a)(9) and 13(d)of the Securities Exchange Act of
1923, becomes a "beneficial owner,"as such term is
used in Rule 13d-3 promulgated under that Act, of 20%
or more of the Voting Stock of a Company;
(iii) The majority of either Board consists of
individuals other than Incumbent Directors,
which term means the members of the Board on the
date of this Agreement; provided that any person
becoming a director subsequent to such date
whose election or nomination for election was
supported by two-thirds of the directors who
then comprised the Incumbent Directors shall be
considered to be an Incumbent Director;
(iv) A Company adopts any plan of liquidation providing
for the distribution of all or substantially all of
its assets;
(v) All or substantially all of the assets or business of
a Company is disposed of pursuant to a merger,
consolidation or other transaction (unless the
shareholders of such Company immediately prior to
such merger, consolidation or other transaction
beneficially own, directly or indirectly, in
substantially the same proportion as they owned the
Voting Stock of such Company, all of the Voting Stock
or other ownership interests of the entity or
entities, if any, that succeed to the business of
such Company); or
(vi) A Company combines with another company and is the
surviving corporation but, immediately after the
combination, the shareholders of such Company
immediately prior to the combination hold, directly
or indirectly, 50% or less of the Voting Stock of the
combined company (there being excluded from the
number of shares held by such shareholders, but not
from the Voting Stock of the combined company, any
shares received by Affiliates of such other company
in exchange for stock of such other company).
(f) "Constructive Termination Without Cause" shall mean a
termination of the Executive's employment at his initiative
as provided in Section 8(d) below following the occurrence,
without the Executive's prior written consent, of one or
more of the following events (except in consequence of a
prior termination):
(i) A reduction in the Executive's then current Base
Salary or the termination or material reduction of
any employee benefit or perquisite enjoyed by him
(other than as part of an across-the-board reduction
applicable to all executive officers of the
Companies);
(ii) The failure to elect or reelect the Executive to any
of the positions described in Section 4 below or
removal of him from any such position;
(iii) A material diminution in the Executive's duties
or the assignment to the Executive of duties
which are materially inconsistent with his
duties or which materially impair the
Executive's ability to function as the President
and as a Director of the Companies or any other
office to which he may be elected or appointed:
(iv) The failure to continue the Executive's participation
in any incentive compensation plan unless a plan
providing a substantially similar opportunity is
substituted;
(v) The relocation of a Companies' principal office, or
the Executive's own office location as assigned to
him by a Company, to a location outside of the
metropolitan area of Louisville, Kentucky; or
(vi) The failure of a Company to obtain the assumption in
writing of its obligation to perform this Agreement
by any successor to all or substantially all of the
assets of such Company within 45 days after a merger,
consolidation, sale or similar transaction.
(g) "Disability" shall mean the Executive's inability to
substantially perform his duties and responsibilities under
this Agreement for a period of 180 consecutive days.
(h) "Term of Employment" shall mean the period specified in
Section 3 below.
2. Cancellation of Old Agreement. The Agreement between the Parties
entered into as of April 5, 1993, is hereby revoked and canceled in
its entirety.
3. Term of Employment. The employment of the Executive will
continue through December 31, 1998, or until the earlier termination
of his employment in accordance with the terms of this Agreement.
4. Position. Duties and Responsibilities.
(a) During the term of Employment, the Executive shall continue
to be employed as Executive Vice President of the Companies
with duties commensurate with that position. The Executive,
in carrying out his duties under this Agreement, shall
report to the Chief Executive Officer.
(b) Anything herein to the contrary notwithstanding, nothing
shall preclude the Executive from (i) serving on the boards
of directors of a reasonable number of other corporations
(except Executive will not serve on the board of any other
financial institution) or the boards of a reasonable number
of trade associations and/or charitable organizations, (ii)
engaging in charitable activities and community affairs,
and (iii) managing his personal investments and affairs,
provided that such activities do not materially interfere
with the proper performance of his duties and
responsibilities as the Companies' Executive Vice President
or any other office to which he may be elected or
appointed.
(d) Executive agrees that he will, consistent with Bank policy,
refrain during the term of his employment and while
receiving benefits hereunder from investing in any company
that is a customer of the Companies.
5. Base Salary. The Executive shall be paid an annualized Base
Salary, payable in accordance with the regular payroll practices of
the Companies, of $156,000.00. The Base Salary shall be reviewed no
less frequently than annually for increase at the sole discretion of
the Board and its Nominating and Executive Compensation Committee.
In addition, upon completion of his service through December 31,
1998, or on that date if Executive is prevented from completing such
service by virtue of Disability, death or a Termination pursuant to
subparagraphs (a) through (d) of Paragraph 8 hereof, the Companies
will pay the Executive a sum equal to Base Salary times two. This sum
is in addition to, and not in place of, any amounts due to Executive
pursuant to any other provision of this Employment Agreement. For
purposes of this paragraph 5, "Base Salary" shall include an annual
bonus calculated by taking the highest bonus of the three years
preceding the year of termination.
6. Employee Benefit Programs. During the Term of Employment, the
Executive shall be entitled to participate in all employee incentive,
pension and welfare benefit plans and programs made available to the
Companies' senior level executives or to its employees generally, as
such plans or programs may be in effect from time to time, including
without limitation, annual stock option grant, ESOP, bonus, pension,
profit sharing, savings and other retirement plans or programs,
medical, dental, hospitalization, short-term and long-term disability
and life insurance plans, accidental death and dismemberment
protection, travel accident insurance, and any other pension or
retirement plans or programs and any other employee incentive
compensation plan, employee welfare benefit plans or programs that
may be sponsored by the Companies from time to time, including any
plans that supplement the above-listed types of plans or programs,
whether funded or unfunded.
7. Reimbursement of Business and Other Expenses. The Executive is
authorized to incur reasonable expenses in carrying out his duties
and responsibilities under this agreement and the Companies shall
promptly reimburse him for all business expenses incurred in
connection with carrying out the business of the Companies, subject
to documentation in accordance with the Companies' policy.
8. Termination of Employment.
(a) Termination by the Company for Cause. In the event the
Companies terminate the Executive's employment for Cause,
he shall be entitled to:
(i) The Base Salary through the date of the termination
of his employment for Cause;
(ii) Any incentive awards earned (but not yet paid);
(iii) Any pension benefit that may become due pursuant
to Section 6 above, determined as of the date of
such termination;
(iv) Other or additional benefits in accordance with
applicable plans or programs of the Companies to the
date of termination.
(b) Termination or Constructive Termination Without Cause. In
the event the Executive's employment is terminated without
Cause or there is a Construction Termination Without
Cause, other than due to Disability or death, the Executive
shall be entitled to:
(i) The Base Salary through the date of termination of
the Executive's employment;
(ii) The Base Salary, at the annualized rate in effect on
the date of termination of the Executive's employment
for the unexpired term of this Employment Agreement
following such termination; provided that at the
Executive's option the Companies shall pay him the
present value of such salary continuation payments in
a lump sum (using as the discount rate the Applicable
Federal Rate for short term Treasury obligations as
published by the Internal Revenue Service for the
month in which such termination occurs). For purposes
of this subsection (ii) "Base Salary" shall include
an annual bonus calculated by taking the highest
bonus of the three years preceding the year of
termination;
(iii) The balance of any incentive awards earned (but
not yet paid);
(iv) The right to exercise any stock option in full,
whether or not such right is exercisable pursuant to
the terms of the grant.
(v) Any pension benefit that may become due pursuant to
Section 6 above;
(vi) Continued accrual of credited service for the purpose
of the pension benefit provided under Section 6 above
through December 31, 1998;
(vii) Continued participation in all medical, dental,
hospitalization and life insurance coverage and
in other employee benefit plans or programs in
which he was participating on the date of the
termination of his employment until the earlier
of:
(A) The end of the period during which he is
receiving salary continuation payments (or in
respect of which a lump-sum severance payment is
made);
(B) The date, or dates, he receives equivalent
coverage and benefits under the plans and
programs of a subsequent employer (such
coverages and benefits to be determined on a
coverage-by-coverage, or benefit-by-benefit,
basis); provided that (x) if the Executive is
precluded from continuing his participation in
any employee benefit plan or program as provided
in this clause (vii) of this Section 8(c), he
shall be provided with the after-tax economic
equivalent of the benefit provided under the
plan or program in which he is unable to
participate for the period specified in this
clause (vii) of this Section 8(c), (y) the
economic equivalent of any benefit foregone
shall be deemed to be the lowest cost that would
be incurred by the Executive in obtaining such
benefit himself on an individual basis, and (z)
payment of such after-tax economic equivalent
shall be made quarterly in advance; and
(viii) Immediate vesting of the Companies' contribution
to his Employee Stock Option Plan
(ix) Other or additional benefits in accordance with
applicable plans and programs of the Companies to the
date of termination.
(c) Termination of Employment Following a Change in Control.
If following a change in Control, the Executive's
employment is terminated without Cause or there is a
Constructive Termination Without Cause, the Executive shall
be entitled to the payments and benefits provided in
Section 8(b), provided that the salary continuation
payments shall be paid in a lump sum without any discount.
Also, immediately following a Change in Control, all
amounts, entitlements or benefits in which he is not yet
vested shall become fully vested except to the extent such
vesting would be inconsistent with the terms of the
relevant plan. In addition, if the Executive has completed
less than fifteen (15) years of service at the time of such
termination, the Executive will be entitled to a
supplemental pension benefit paid directly by the Companies
(and not as a part of the Pension Plan of the Companies)
equal to the benefit otherwise payable under said Pension
Plan based upon the completion of fifteen (15) years of
service, minus any amounts payable pursuant to the said
Pension Plan. This supplemental pension benefit is an
unfunded liability of the Companies, its successors and
assigns, and not part of any established Plan of the
Companies.
(d) Voluntary Termination. In the event of a termination of
employment by the Executive on his own initiative other
than a termination due to death or Disability or a
Constructive Termination without Cause, the Executive shall
have the same entitlements as provided in Section 8(a) for
a Termination for Cause.
(e) Limitation Following a Change in Control. In the event that
the termination of the Executive's employment is for one
of the reasons set forth in Section 8(c) above and the
aggregate of all payments or benefits made or provided to
the Executive under Section 8(b) above and under all other
plans and programs of the Companies (the "Aggregate
Payment") is determined to constitute a Parachute Payment,
as such term is defined in Section 280G(b)(2) of the
Internal Revenue Code of 1986, as amended, notwithstanding
any other provision of this Agreement to the contrary the
aggregate amount of payments or benefits paid by the
Companies to the Executive pursuant to this Agreement, the
amount to be paid to the Executive and the time of payment
pursuant to this Section 8(e) shall be adjusted so as to
make such payments fully deductible by a Company. If the
parties are unable to agree upon an Auditor to calculate
such an adjustment, then the Executive and Companies shall
each select one accounting firm and those two firms shall
jointly select the accounting firm to serve as the Auditor.
(g) No Mitigation - No Offset. In the event of any termination
of employment under this Section 8, the Executive shall be
under no obligation to seek other employment and there
shall be no offset against amounts due the Executive under
this Agreement on account of any remuneration attributable
to any subsequent employment that he may obtain except as
specifically provided in this Section 8.
(h) Nature of Payments. Any amounts due under this Section 8
are in the nature of severance payments considered to be
reasonable by the Companies and are not in the nature of
a penalty.
9. Indemnification.
(a) The Companies agree that if the Executive is made a party,
or is threatened to be made a party, to any action, suit
or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that
he is or was a director, officer or employee of the
Companies or is or was serving at the request of the
Companies as a director, officer, member, employee or agent
of another corporation, partnership, joint venture, trust
or other enterprise, including service with respect to
employee benefit plans, whether or not the basis of such
Proceeding is the Executive's alleged action in an official
capacity while serving as a director, officer, member,
employee or agent, the Executive shall be indemnified and
held harmless by the Companies to the fullest extent
permitted or authorized by the Companies' certificates of
incorporation or bylaws or, if greater, by the laws of the
State of Kentucky, against all cost, expense, liability and
loss (including, without limitation, reasonable attorney's
fees, judgments, fines, ERISA fines, excise taxes or
penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by the Executive in
connection therewith, and such indemnification shall
continue as to the Executive even if he has ceased to be
a director, member, employee or agent of the Companies or
other entity and shall inure to the benefit of the
Executive's heirs, executors and administrators. The
Companies shall advance to the Executive all reasonable
costs and expenses incurred by him in connection with a
Proceeding within 20 days after receipt by a Company of a
written request for such advance. Such request shall
include an undertaking by the Executive to repay the amount
of such advance if it shall ultimately be determined that
he is not entitled to be indemnified against such costs and
expenses.
(b) Neither the failure of a Company (including its board of
directors, independent legal counsel or stockholders) to
have made a determination prior to the commencement of any
proceeding concerning payment of amounts claimed by the
Executive under Section 10(a) that indemnification of the
Executive is proper because he has met the applicable
standard of conduct, nor a determination by a Company
(including its board of directors, independent legal
counsel or stockholders) that the Executive has not met
such applicable standard of conduct, shall create a
presumption that the Executive has not met the applicable
standard of conduct.
(c) The Companies agree to continue and maintain a directors'
and officers' liability insurance policy covering the
Executive to the extent either Company provides such
coverage for its other executive officers.
10. Representation. The Companies represent and warrant that they
are fully authorized and empowered to enter into this Agreement and
that the performance of their obligations under this Agreement will
not violate any agreement between it and any other person, form or
organization.
11. Entire Agreement. This Agreement contains the entire
understanding and agreement between the Parties concerning the
subject matter hereof and supersedes all prior agreements,
understandings, discussions, negotiations and undertakings, whether
written or oral, between the Parties with respect thereto.
12. Amendment or Waiver. No provision in this Agreement may be
amended unless such amendment is agreed to in writing and signed by
the Executive and an authorized officer of the Companies. No waiver
by either Party of any breach by the other Party of any condition or
provision contained in this Agreement to be performed by such other
Party shall be deemed a waiver of a similar or dissimilar condition
or provision at the same or any prior or subsequent time. Any waiver
must be in writing and signed by the Executive or an authorized
officer of the Companies, as the case may be.
13. Severability. In the event that any provision or portion of
this Agreement shall be determined to be invalid or unenforceable for
any reason, in whole or in part, the remaining provisions of this
Agreement shall be unaffected thereby and shall remain in full force
and effect to the fullest extent permitted by law.
14. Survivorship. The respective rights and obligations of the
Parties hereunder shall survive any termination of the Executive's
employment to the extent necessary to the intended preservation of
such rights and obligations.
15. Resolution of Disputes. Any disputes arising under or in
connection with this Agreement shall, at the election of the
Executive or the Companies, be resolved by binding arbitration, to be
held in Kentucky in accordance with the rules and procedures of the
American Arbitration Association. Judgment upon the award rendered by
the arbitrator(s) may be entered in any court having jurisdiction
thereof. Costs of the arbitration or litigation, including, without
limitation, attorneys' fees of both Parties, shall be borne by the
Companies, provided that if the arbitrator(s) determine that the
claims or defenses of the Executive were without any reasonable
basis, each Party shall bear his or its own costs.
16. Notices. Any notice given to a Party shall be in writing and
shall be deemed to have been given when delivered personally or sent
by certified or registered mail, postage prepaid, return receipt
requested, duly addressed to the Party concerned at the address
indicated below or to such changed address as such Party may
subsequently give such notice of:
If to the Companies: Mid-America Bancorp, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx
If to the Executive: XXXXXX X. XXXXX
0000 Xxxx Xxxxxx
Xxxxxxxxxx. XX 00000
17. Additional Compensation in Event of Change of Control. Pursuant
to the Agreement between the Parties dated as of April 5, 1993,
Executive was granted certain Stock Appreciation Rights contingent
upon a Change in Control on or before December 31, 1998.
Notwithstanding anything else in this Agreement to the contrary, that
grant will continue under the same terms and conditions.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first written above.
MID-AMERICA BANCORP, INC.
By: /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Title: Chairman of the Board
MID-AMERICA BANK OF LOUISVILLE &
TRUST COMPANY
By: /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Title: Chairman of the Board
/s/ Xxxxxx X. Xxxxx
XXXXXX X. XXXXX
Exhibit 10 (g)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of March
, 1996 by and between MID AMERICA BANCORP, INC., a Kentucky
corporation and MID AMERICA BANK OF LOUISVILLE & TRUST COMPANY, a
Kentucky Combined Bank and Trust Company, (together with their
successors and assigns permitted under this Agreement, the
"Companies), and XXXX XXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Companies and the Executive are parties to an
Agreement dated as of April 5, 1993, covering the employment
relationship of Executive with Companies, and
WHEREAS, the Parties desire to cancel that Agreement and replace
it in its entirety with this Employment Agreement (this "Agreement").
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable
consideration, the receipt of which is mutually acknowledged, the
Companies and the Executive (individually a "Party" and together the
"Parties") agree as follows:
1. Definitions.
(a) "Affiliate" of a person or other entity shall mean a person
or other entity that directly or indirectly controls, is
controlled by, or is under common control with the person
or other entity specified.
(b) Except as provided otherwise in Section 8 hereof, "Base
Salary" shall mean the salary provided for in Section 5
below or any increased salary granted to the Executive
pursuant to Section 5.
(c) "Board" shall mean the Boards of Directors of the
Companies.
(d) "Cause" shall mean:
(i) The Executive is convicted of a felony; or
(ii) The Executive is guilty of willful gross neglect or
willful gross misconduct in carrying out his duties
under this Agreement, resulting, in either case, in
material economic harm to the Companies, unless the
Executive believed in good faith that such act or
nonact was in the best interests of such Company.
(e) A "Change of Control" shall mean the occurrence of any one
of the following events:
(i) Any "person," as such term is used in Sections
3(a)(9) and 13(d)of the Securities Exchange Act of
1923, becomes a "beneficial owner,"as such term is
used in Rule 13d-3 promulgated under that Act, of 20%
or more of the Voting Stock of the Companies;
(ii) The majority of either Board consists of individuals
other than Incumbent Directors, which term means the
members of the Board on the date of this Agreement;
provided that any person becoming a director
subsequent to such date whose election or nomination
for election was supported by two-thirds of the
directors who then comprised the Incumbent Directors
shall be considered to be an Incumbent Director;
(iii) The Companies adopt any plan of liquidation
providing for the distribution of all or
substantially all of its assets;
(iv) All or substantially all of the assets or business of
the Companies is disposed of pursuant to a merger,
consolidation or other transaction (unless the
shareholders of such Company immediately prior to
such merger, consolidation or other transaction
beneficially own, directly or indirectly, in
substantially the same proportion as they owned the
Voting Stock of such Company, all of the Voting Stock
or other ownership interests of the entity or
entities, if any, that succeed to the business of
such Company); or
(v) The Companies combine with another company and is the
surviving corporation but, immediately after the
combination, the shareholders of such Company
immediately prior to the combination hold, directly
or indirectly, 50% or less of the Voting Stock of the
combined company (there being excluded from the
number of shares held by such shareholders, but not
from the Voting Stock of the combined company, any
shares received by Affiliates of such other company
in exchange for stock of such other company).
(f) "Constructive Termination Without Cause" shall mean a
termination of the Executive's employment at his initiative
as provided in Section 8(e) below following the occurrence,
without the Executive's prior written consent, of one or
more of the following events (except in consequence of a
prior termination):
(i) A reduction in the Executive's then current Base
Salary or the termination or material reduction of
any employee benefit or perquisite enjoyed by him;
(ii) The failure to elect or reelect the Executive to any
of the positions described in Section 4 below or
removal of him from any such position;
(iii) A material diminution in the Executive's duties
or the assignment to the Executive of duties
which are materially inconsistent with his
duties or which materially impair the
Executive's ability to function as the Executive
Vice President and Chief Executive Officer or
any other office to which he may be elected or
appointed:
(iv) The failure to continue the Executive's participation
in any incentive compensation plan unless a plan
providing a substantially similar opportunity is
substituted;
(v) The relocation of a Companies' principal office, or
the Executive's own office location as assigned to
him by the Companies, to a location outside of the
metropolitan area of Louisville, Kentucky; or
(vi) The failure of the Companies to obtain the assumption
in writing of its obligation to perform this
Agreement by any successor to all or substantially
all of the assets of such Company within 45 days
after a merger, consolidation, sale or similar
transaction.
(g) "Disability" shall mean the Executive's inability to
substantially perform his duties and responsibilities under
this Agreement for a period of 180 consecutive days.
(h) "Term of Employment" shall mean the period specified in
Section 3 below.
2. Cancellation of Old Agreement.
The Agreement between the Parties entered into as of May 3,
1993, is hereby revoked and canceled in its entirety.
3. Term of Employment.
The employment of the Executive will continue to the last day of
the month in which the Executive turns 65 years of age or until the
earlier termination of his employment in accordance with the terms of
this Agreement.
4. Position. Duties and Responsibilities.
(a) During the term of Employment, the Executive shall continue
to be employed as Executive Vice President of the Companies
with duties commensurate with that position. The Executive,
in carrying out his duties under this Agreement, shall
report to the Chief Executive Officer.
(b) Anything herein to the contrary notwithstanding, nothing
shall preclude the Executive from (i) serving on the boards
of directors of a reasonable number of other corporations
(except Executive will not serve on the board of any other
financial institution) or the boards of a reasonable number
of trade associations and/or charitable organizations, (ii)
engaging in charitable activities and community affairs,
and (iii) managing his personal investments and affairs,
provided that such activities do not materially interfere
with the proper performance of his duties and
responsibilities as the Companies' Executive Vice President
or any other office to which he may be elected or
appointed.
5. Base Salary.
The Executive shall be paid an annualized Base Salary, payable
in accordance with the regular payroll practices of the Companies, of
$156,000.00. The Base Salary shall be reviewed no less frequently
than annually for increase at the sole discretion of the Board and
its Nominating and Executive Compensation Committee.
6. Employee Benefit Programs.
During the Term of Employment, the Executive shall be entitled
to participate in all employee incentive, pension and welfare benefit
plans and programs made available to the Companies' senior level
executives or to its employees generally, as such plans or programs
may be in effect from time to time, including without limitation,
annual stock option grant, ESOP, bonus, pension, profit sharing,
savings and other retirement plans or programs, medical, dental,
hospitalization, short-term and long-term disability and life
insurance plans, accidental death and dismemberment protection,
travel accident insurance, and any other pension or retirement plans
or programs and any other employee incentive compensation plan,
employee welfare benefit plans or programs that may be sponsored by
the Companies from time to time, including any plans that supplement
the above-listed types of plans or programs, whether funded or
unfunded.
7. Reimbursement of Business and Other Expenses.
The Executive is authorized to incur reasonable expenses in
carrying out his duties and responsibilities under this agreement and
the Companies shall promptly reimburse him for all business expenses
incurred in connection with carrying out the business of the
Companies, subject to documentation in accordance with the Companies'
policy.
8. Termination of Employment.
(a) Termination for Cause. In the event the Companies terminate
the Executive's employment for Cause, he shall be entitled
to:
(i) The Base Salary through the date of the termination
of his employment for Cause;
(ii) Any incentive awards earned (but not yet paid);
(iii) Any pension benefit that may become due pursuant
to Section 6 above, determined as of the date of
such termination;
(iv) Other or additional benefits in accordance with
applicable plans or programs of the Companies to the
date of termination.
(b) Termination Without Cause. If the Executive's employment
is terminated without Cause other than due to Disability
or death, or there is a Constructive Termination without
Cause, the Executive shall be entitled to:
(i) The Base Salary through the date of termination of
the Executive's employment;
(ii) The Base Salary, at the annualized rate in effect on
the date of termination of the Executive's employment
for the unexpired term of this Employment Agreement
following such termination; provided that at the
Executive's option the Companies shall pay him the
present value of such salary continuation payments in
a lump sum (using as the discount rate the Applicable
Federal Rate for short term Treasury obligations as
published by the Internal Revenue Service for the
month in which such termination occurs). For purposes
of this subsection (ii) "Base Salary" shall include
an annual bonus calculated by taking the highest
bonus of the three years preceding the year of
termination;
(iii) The balance of any incentive awards earned (but
not yet paid);
(iv) The right to exercise any stock option in full,
whether or not such right is exercisable pursuant to
the terms of the grant.
(v) Any pension benefit that may become due pursuant to
Section 6 above;
(vi) Continued accrual of credited service for the purpose
of the pension benefit provided under Section 6 above
until his attainment of age 65;
(vii) Continued participation in all medical, dental,
hospitalization and life insurance coverage and
in other employee benefit plans or programs in
which he was participating on the date of the
termination of his employment until the earlier
of:
(A) The end of the period during which he is
receiving salary continuation payments (or in
respect of which a lump-sum severance payment is
made);
(B) The date, or dates, he receives equivalent
coverage and benefits under the plans and
programs of a subsequent employer (such
coverages and benefits to be determined on a
coverage-by-coverage, or benefit-by-benefit,
basis); provided that (x) if the Executive is
precluded from continuing his participation in
any employee benefit plan or program as provided
in this clause (vii) of this Section 8(b), he
shall be provided with the after-tax economic
equivalent of the benefit provided under the
plan or program in which he is unable to
participate for the period specified in this
clause (vii) of this Section 8(b), (y) the
economic equivalent of any benefit foregone
shall be deemed to be the lowest cost that would
be incurred by the Executive in obtaining such
benefit himself on an individual basis, and (z)
payment of such after-tax economic equivalent
shall be made quarterly in advance; and
(viii) Immediate vesting of the Companies' contribution
to his Employee Stock Option Plan:
(ix) Other or additional benefits in accordance with
applicable plans and programs of the Companies to the
date of termination.
(c) Termination of Employment Following a Change in Control.
If following a Change in Control, the Executive's
employment is terminated without Cause or there is a
Constructive Termination Without Cause, the Executive shall
be entitled to the payments and benefits provided in
Section 8(b), provided that the salary continuation
payments shall be paid in a lump sum without any discount.
Also, immediately following a Change in Control, all
amounts, entitlements or benefits in which he is not yet
vested shall become fully vested. In addition, if the
Executive has completed less than fifteen (15) years of
service at the time of such termination, the Executive will
be entitled to a supplemental pension benefit paid directly
by the Companies (and not as a part of the Pension Plan of
the Companies) equal to the benefit otherwise payable under
said Pension Plan based upon the completion of fifteen (15)
years of service, minus any amounts payable pursuant to the
said Pension Plan. This supplemental pension benefit is an
unfunded liability of the Companies, the successors and
assigns, and not part of any established Plan of the
Companies. In addition, if Executive continues in the
employ of the Companies for a period of two years following
the effective date of the Change of Control, he may then
voluntarily terminate his employment and in such a case
would receive, in addition to the benefits provided for
elsewhere herein, a sum equal to three times Base Salary.
A voluntary termination under this Section 8(c) shall be
effective upon 30 days prior notice to the Companies and
shall not be deemed a breach of this Agreement. For
purposes of this Section 8(c) "Base Salary" shall include
an annual bonus calculated by taking the highest bonus of
the three years preceding the year of termination;
(d) Voluntary Termination. In the event of a termination of
employment by the Executive on his own initiative other
than a termination due to death or Disability or a
Constructive Termination without Cause, the Executive shall
have the same entitlements as provided in Section 8(a) for
a Termination for Cause.
(e) Limitation Following a Change in Control. In the event
that the termination of the Executive's employment is for
one of the reasons set forth in Section 8(c) above and the
aggregate of all payments or benefits made or provided to
the Executive under such Section above and under all other
plans and programs of the Companies (the "Aggregate
Payment") is determined to constitute a Parachute Payment,
as such term is defined in Section 280G(b)(2) of the
Internal Revenue Code of 1986, as amended, notwithstanding
any other provision of this Agreement to the contrary the
aggregate amount of payments or benefits paid by the
Companies to the Executive pursuant to this Agreement, the
amount to be paid to the Executive and the time of payment
pursuant to this Section 8(e) shall be adjusted so as to
make such payments fully deductible by the Companies. If
the parties are unable to agree upon an Auditor to
calculate such an adjustment, then the Executive and
Companies shall each select one accounting firm and those
two firms shall jointly select the accounting firm to serve
as the Auditor.
(g) Company Car. Upon termination pursuant to Section 8(b) or
(c), the Executive will have the option of purchasing his
Company car for the value of such car on the books of the
Company at the time of termination.
(h) No Mitigation - No Offset. In the event of any termination
of employment under this Section 8, the Executive shall be
under no obligation to seek other employment and there
shall be no offset against amounts due the Executive under
this Agreement on account of any remuneration attributable
to any subsequent employment that he may obtain except as
specifically provided in this Section 8.
(i) Nature of Payments. Any amounts due under this Section 8
are in the nature of severance payments considered to be
reasonable by the Companies and are not in the nature of
a penalty.
9. Indemnification.
(a) The Companies agree that if the Executive is made a party,
or is threatened to be made a party, to any action, suit
or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that
he is or was a director, officer or employee of the
Companies or is or was serving at the request of the
Companies as a director, officer, member, employee or agent
of another corporation, partnership, joint venture, trust
or other enterprise, including service with respect to
employee benefit plans, whether or not the basis of such
Proceeding is the Executive's alleged action in an official
capacity while serving as a director, officer, member,
employee or agent, the Executive shall be indemnified and
held harmless by the Companies to the fullest extent
permitted or authorized by the Companies' certificates of
incorporation or bylaws or, if greater, by the laws of the
State of Kentucky, against all cost, expense, liability and
loss (including, without limitation, reasonable attorney's
fees, judgments, fines, ERISA fines, excise taxes or
penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by the Executive in
connection therewith, and such indemnification shall
continue as to the Executive even if he has ceased to be
a director, member, employee or agent of the Companies or
other entity and shall inure to the benefit of the
Executive's heirs, executors and administrators. The
Companies shall advance to the Executive all reasonable
costs and expenses incurred by him in connection with a
Proceeding within 20 days after receipt by the Companies
of a written request for such advance. Such request shall
include an undertaking by the Executive to repay the amount
of such advance if it shall ultimately be determined that
he is not entitled to be indemnified against such costs and
expenses.
(b) Neither the failure of the Companies (including its board
of directors, independent legal counsel or stockholders)
to have made a determination prior to the commencement of
any proceeding concerning payment of amounts claimed by the
Executive under Section 10(a) that indemnification of the
Executive is proper because he has met the applicable
standard of conduct, nor a determination by the Companies
(including its board of directors, independent legal
counsel or stockholders) that the Executive has not met
such applicable standard of conduct, shall create a
presumption that the Executive has not met the applicable
standard of conduct.
(c) The Companies agree to continue and maintain a directors'
and officers' liability insurance policy covering the
Executive to the extent either Company provides such
coverage for its other executive officers.
10. Representation.
The Companies represent and warrant that they are fully
authorized and empowered to enter into this Agreement and that the
performance of their obligations under this Agreement will not
violate any agreement between it and any other person, form or
organization.
11. Entire Agreement.
This Agreement contains the entire understanding and agreement
between the Parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions,
negotiations and undertakings, whether written or oral, between the
Parties with respect thereto.
12. Amendment or Waiver.
No provision in this Agreement may be amended unless such
amendment is agreed to in writing and signed by the Executive and an
authorized officer of the Companies. No waiver by either Party of any
breach by the other Party of any condition or provision contained in
this Agreement to be performed by such other Party shall be deemed a
waiver of a similar or dissimilar condition or provision at the same
or any prior or subsequent time. Any waiver must be in writing and
signed by the Executive or an authorized officer of the Companies, as
the case may be.
13. Severability.
In the event that any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the
fullest extent permitted by law.
14. Survivorship.
The respective rights and obligations of the Parties hereunder
shall survive any termination of the Executive's employment to the
extent necessary to the intended preservation of such rights and
obligations.
15. Resolution of Disputes.
Any disputes arising under or in connection with this Agreement
shall, at the election of the Executive or the Companies, be resolved
by binding arbitration, to be held in Kentucky in accordance with the
rules and procedures of the American Arbitration Association.
Judgment upon the award rendered by the arbitrator(s) may be entered
in any court having jurisdiction thereof. Costs of the arbitration or
litigation, including, without limitation, attorneys' fees of both
Parties, shall be borne by the Companies, provided that if the
arbitrator(s) determine that the claims or defenses of the Executive
were without any reasonable basis, each Party shall bear his or its
own costs.
16. Notices.
Any notice given to a party shall be in writing and shall be
deemed to have been given when delivered personally or sent by
certified or registered mail, postage prepaid, return receipt
requested, duly addressed to the Party concerned at the address
indicated below or to such changed address as such Party may
subsequently give such notice of:
If to the Companies: Mid-America Bancorp, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx
If to the Executive: XXXX XXXX
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first written above.
MID-AMERICA BANCORP, INC.
By: /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Title: Chairman of the Board
MID-AMERICA BANK OF LOUISVILLE &
TRUST COMPANY
By: /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Title: Chairman of the Board
/s/ Xxxx Xxxx
XXXX XXXX
Exhibit 10 (h)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of March
, 1996 by and between MID AMERICA BANCORP, INC., a Kentucky
corporation and MID AMERICA BANK OF LOUISVILLE & TRUST COMPANY, a
Kentucky Combined Bank and Trust Company, (together with their
successors and assigns permitted under this Agreement, the
"Companies), and XXXXXX X. SMALL (the "Executive").
W I T N E S S E T H:
WHEREAS, the Companies and the Executive are parties to an
Agreement dated as of May 3, 1993, covering the employment
relationship of Executive with Companies, and
WHEREAS, the Parties desire to cancel that Agreement and replace
it in its entirety with this Employment Agreement (this "Agreement").
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable
consideration, the receipt of which is mutually acknowledged, the
Companies and the Executive (individually a "Party" and together the
"Parties") agree as follows:
1. Definitions.
(a) "Affiliate" of a person or other entity shall mean a person or
other entity that directly or indirectly controls, is
controlled by, or is under common control with the person or
other entity specified.
(b) Except as provided otherwise in Section 8 hereof,"Base Salary"
shall mean the salary provided for in Section 5 below or any
increased salary granted to the Executive pursuant to Section
5.
(c) "Board" shall mean the Boards of Directors of the Companies.
(d) "Cause" shall mean:
(i) The Executive is convicted of a felony; or
(ii) The Executive is guilty of willful gross neglect or
willful gross misconduct in carrying out his duties under
this Agreement, resulting, in either case, in material
economic harm to the Companies, unless the Executive
believed in good faith that such act or nonact was in the
best interests of such Company.
(e) A "Change of Control" shall mean the occurrence of any one of
the following events:
(i) Any "person," as such term is used in Sections 3(a)(9)
and 13(d)of the Securities Exchange Act of 1923, becomes
a "beneficial owner,"as such term is used in Rule 13d-3
promulgated under that Act, of 20% or more of the Voting
Stock of the Companies;
(ii) The majority of either Board consists of individuals
other than Incumbent Directors, which term means the
members of the Board on the date of this Agreement;
provided that any person becoming a director subsequent
to such date whose election or nomination for election
was supported by two-thirds of the directors who then
comprised the Incumbent Directors shall be considered to
be an Incumbent Director;
(iii) The Companies adopt any plan of liquidation
providing for the distribution of all or
substantially all of its assets;
(iv) All or substantially all of the assets or business of the
Companies is disposed of pursuant to a merger,
consolidation or other transaction (unless the
shareholders of such Company immediately prior to such
merger, consolidation or other transaction beneficially
own, directly or indirectly, in substantially the same
proportion as they owned the Voting Stock of such
Company, all of the Voting Stock or other ownership
interests of the entity or entities, if any, that
succeed to the business of such Company); or
(v) The Companies combine with another company and is the
surviving corporation but, immediately after the
combination, the shareholders of such Company immediately
prior to the combination hold, directly or indirectly,
50% or less of the Voting Stock of the combined company
(there being excluded from the number of shares held by
such shareholders, but not from the Voting Stock of the
combined company, any shares received by Affiliates of
such other company in exchange for stock of such other
company).
(f) "Constructive Termination Without Cause" shall mean a
termination of the Executive's employment at his initiative as
provided in Section 8(d) below following the occurrence,
without the Executive's prior written consent, of one or more
of the following events (except in consequence of a prior
termination):
(i) A reduction in the Executive's then current Base Salary
or the termination or material reduction of any employee
benefit or perquisite enjoyed by him;
(ii) The failure to elect or reelect the Executive to any of
the positions described in Section 4 below or removal of
him from any such position;
(iii) A material diminution in the Executive's duties or
the assignment to the Executive of duties which are
materially inconsistent with his duties or which
materially impair the Executive's ability to
function as the Executive Vice President and Chief
Executive Officer or any other office to which he
may be elected or appointed:
(iv) The failure to continue the Executive's participation in
any incentive compensation plan unless a plan providing
a substantially similar opportunity is substituted;
(v) The relocation of a Companies' principal office, or the
Executive's own office location as assigned to him by the
Companies, to a location outside of the metropolitan area
of Louisville, Kentucky; or
(vi) The failure of the Companies to obtain the assumption in
writing of its obligation to perform this Agreement by
any successor to all or substantially all of the assets
of such Company within 45 days after a merger,
consolidation, sale or similar transaction.
(g) "Disability" shall mean the Executive's inability to
substantially perform his duties and responsibilities under
this Agreement for a period of 180 consecutive days.
(h) "Term of Employment" shall mean the period specified in
Section 3 below.
2. Cancellation of Old Agreement.
The Agreement between the Parties entered into as of May 3, 1993,
is hereby revoked and canceled in its entirety.
3. Term of Employment.
The employment of the Executive will continue to the last day of
the month in which the Executive turns 55 years of age or until the
earlier termination of his employment in accordance with the terms of
this Agreement.
4. Position. Duties and Responsibilities.
(a) During the term of Employment, the Executive shall continue to
be employed as Executive Vice President and Chief Financial
Officer of the Companies with duties commensurate with that
position. The Executive, in carrying out his duties under this
Agreement, shall report to the Chairman of the Board.
(b) Anything herein to the contrary notwithstanding, nothing shall
preclude the Executive from (i) serving on the boards of
directors of a reasonable number of other corporations (except
Executive will not serve on the board of any other financial
institution) or the boards of a reasonable number of trade
associations and/or charitable organizations, (ii) engaging in
charitable activities and community affairs, and (iii) managing
his personal investments and affairs, provided that such
activities do not materially interfere with the proper
performance of his duties and responsibilities as the
Companies' Executive Vice President and Chief Financial Officer
or any other office to which he may be elected or appointed.
5. Base Salary.
The Executive shall be paid an annualized Base Salary, payable in
accordance with the regular payroll practices of the Companies, of
$159,500.00. The Base Salary shall be reviewed no less frequently than
annually for increase at the sole discretion of the Board and its
Nominating and Executive Compensation Committee.
6. Employee Benefit Programs.
During the Term of Employment, the Executive shall be entitled to
participate in all employee incentive, pension and welfare benefit
plans and programs made available to the Companies' senior level
executives or to its employees generally, as such plans or programs
may be in effect from time to time, including without limitation,
annual stock option grant, ESOP, bonus, pension, profit sharing,
savings and other retirement plans or programs, medical, dental,
hospitalization, short-term and long-term disability and life
insurance plans, accidental death and dismemberment protection, travel
accident insurance, and any other pension or retirement plans or
programs and any other employee incentive compensation plan, employee
welfare benefit plans or programs that may be sponsored by the
Companies from time to time, including any plans that supplement the
above-listed types of plans or programs, whether funded or unfunded.
7. Reimbursement of Business and Other Expenses.
The Executive is authorized to incur reasonable expenses in
carrying out his duties and responsibilities under this agreement and
the Companies shall promptly reimburse him for all business expenses
incurred in connection with carrying out the business of the
Companies, subject to documentation in accordance with the Companies'
policy.
8. Termination of Employment.
(a) Termination for Cause. In the event the Companies terminate
the Executive's employment for Cause, he shall be entitled to:
(i) The Base Salary through the date of the termination of
his employment for Cause;
(ii) Any incentive awards earned (but not yet paid);
(iii) Any pension benefit that may become due pursuant to
Section 6 above, determined as of the date of such
termination;
(iv) Other or additional benefits in accordance with
applicable plans or programs of the Companies to the date
of termination.
(b) Termination Without Cause on or before December 31, 2000.
If, on or before December 31, 2000, the Executive's
employment is terminated without Cause other than due to
Disability or death, or there is a Constructive Termination
without Cause, the Executive shall be entitled to:
(i) The Base Salary through the date of termination of the
Executive's employment;
(ii) The Base Salary, at the annualized rate in effect on the
date of termination of the Executive's employment for the
unexpired term of this Employment Agreement following
such termination, paid in installments in accordance with
the regular pay practices of the Companies; provided that
at the Executive's option the Companies shall pay him the
present value of such salary continuation payments in a
lump sum (using as the discount rate the Applicable
Federal Rate for short term Treasury obligations as
published by the Internal Revenue Service for the month
in which such termination occurs). For purposes of this
subsection (ii) "Base Salary" shall include an annual
bonus calculated by taking the highest bonus of the three
years preceding the year of termination;
(iii) The balance of any incentive awards earned (but not
yet paid);
(iv) The right to exercise any stock option in full, whether
or not such right is exercisable pursuant to the terms of
the grant.
(v) Any pension benefit that may become due pursuant to
Section 6 above;
(vi) Continued accrual of credited service for the purpose of
the pension benefit provided under Section 6 above until
his attainment of age 55;
(vii) Continued participation in all medical, dental,
hospitalization and life insurance coverage and in
other employee benefit plans or programs in which
he was participating on the date of the termination
of his employment until the earlier of:
(A) The end of the period during which he is receiving
salary continuation payments (or in respect of
which a lump-sum severance payment is made);
(B) The date, or dates, he receives equivalent coverage
and benefits under the plans and programs of a
subsequent employer (such coverages and benefits to
be determined on a coverage-by-coverage, or
benefit-by-benefit, basis); provided that (x) if
the Executive is precluded from continuing his
participation in any employee benefit plan or
program as provided in this clause (vii) of this
Section 8(b), he shall be provided with the
after-tax economic equivalent of the benefit
provided under the plan or program in which he is
unable to participate for the period specified in
this clause (vii) of this Section 8(b), (y) the
economic equivalent of any benefit foregone shall
be deemed to be the lowest cost that would be
incurred by the Executive in obtaining such benefit
himself on an individual basis, and (z) payment of
such after-tax economic equivalent shall be made
quarterly in advance; and
(viii) Immediate vesting of the Companies' contribution to
his Employee Stock Option Plan
(ix) Other or additional benefits in accordance with
applicable plans and programs of the Companies to the
date of termination.
(c) Termination Without Cause after December 31, 2000. If, after
December 31, 2000, the Executive's employment is terminated
without Cause other than due to Disability or death, or there
is a Constructive Termination without Cause, the Executive
shall be entitled to:
(i) The Base Salary through the date of termination of the
Executive's employment;
(ii) The Base Salary, at the annualized rate in effect on the
date of termination of the Executive's employment for the
unexpired term of this Employment Agreement following
such termination, paid in installments in accordance with
the regular pay practices of the Companies; provided that
at the Executive's option the Companies shall pay him the
present value of such salary continuation payments in a
lump sum (using as the discount rate the Applicable
Federal Rate for short term Treasury obligations as
published by the Internal Revenue Service for the month
in which such termination occurs). For purposes of this
subsection (ii) "Base Salary" shall include an annual
bonus calculated by taking the highest bonus of the three
years preceding the year of termination;
(iii) The balance of any incentive awards earned (but not
yet paid);
(iv) The right to exercise any stock option in full, whether
or not such right is exercisable pursuant to the terms of
the grant.
(v) Any pension benefit that may become due pursuant to
Section 6 above;
(vi) Continued participation in all medical, dental,
hospitalization and life insurance coverage and in other
employee benefit plans or programs in which he was
participating on the date of the termination of his
employment until the earlier of:
(A) The end of the period during which he is receiving
salary continuation payments (or in respect of
which a lump-sum severance payment is made);
(B) The date, or dates, he receives equivalent coverage
and benefits under the plans and programs of a
subsequent employer (such coverages and benefits to
be determined on a coverage-by-coverage, or
benefit-by-benefit, basis); provided that (x) if
the Executive is precluded from continuing his
participation in any employee benefit plan or
program as provided in this clause (vii) of this
Section 8(c), he shall be provided with the
after-tax economic equivalent of the benefit
provided under the plan or program in which he is
unable to participate for the period specified in
this clause (vii) of this Section 8(c), (y) the
economic equivalent of any benefit foregone shall
be deemed to be the lowest cost that would be
incurred by the Executive in obtaining such benefit
himself on an individual basis, and (z) payment of
such after-tax economic equivalent shall be made
quarterly in advance; and
(vii) Immediate vesting of the Companies' contribution to
his Employee Stock Option Plan
(viii) Other or additional benefits in accordance with
applicable plans and programs of the Companies to
the date of termination.
(d) Termination of Employment Following a Change in Control. If
following a Change in Control, the Executive's employment is
terminated without Cause or there is a Constructive Termination
Without Cause, the Executive shall be entitled to the payments
and benefits provided in Section 8(b) or 8(c) as appropriate,
provided that the salary continuation payments shall be paid in
a lump sum without any discount. Also, immediately following a
Change in Control, all amounts, entitlements or benefits in
which he is not yet vested shall become fully vested. In
addition, if the Executive has completed less than fifteen (15)
years of service at the time of such termination, the Executive
will be entitled to a supplemental pension benefit paid
directly by the Companies (and not as a part of the Pension
Plan of the Companies) equal to the benefit otherwise payable
under said Pension Plan based upon the completion of fifteen
(15) years of service, minus any amounts payable pursuant to
the said Pension Plan. This supplemental pension benefit is an
unfunded liability of the Companies, the successors and
assigns, and not part of any established Plan of the Companies.
In addition, if Executive continues in the employ of the
Companies for a period of two years following the effective
date of the Change of Control, he may then voluntarily
terminate his employment and in such a case would receive, in
addition to the benefits provided for elsewhere herein, a sum
equal to three times Base Salary. A voluntary termination
under this Section 8(d) shall be effective upon 30 days prior
notice to the Companies and shall not be deemed a breach of
this Agreement. For purposes of this Section 8(d) "Base Salary"
shall include an annual bonus calculated by taking the highest
bonus of the three years preceding the year of termination;
(e) Voluntary Termination. In the event of a termination of
employment by the Executive on his own initiative other than a
termination due to death or Disability or a Constructive
Termination without Cause, the Executive shall have the same
entitlements as provided in Section 8(a) for a Termination for
Cause.
(f) Limitation Following a Change in Control. In the event that
the termination of the Executive's employment is for one of the
reasons set forth in Section 8(b) or 8(c) above and the
aggregate of all payments or benefits made or provided to the
Executive under such Section above and under all other plans
and programs of the Companies (the "Aggregate Payment") is
determined to constitute a Parachute Payment, as such term is
defined in Section 280G(b)(2) of the Internal Revenue Code of
1986, as amended, notwithstanding any other provision of this
Agreement to the contrary the aggregate amount of payments or
benefits paid by the Companies to the Executive pursuant to
this Agreement, the amount to be paid to the Executive and the
time of payment pursuant to this Section 8(f) shall be adjusted
so as to make such payments fully deductible by the Companies.
If the Parties are unable to agree upon an Auditor to calculate
such an adjustment, then the Executive and Companies shall each
select one accounting firm and those two firms shall jointly
select the accounting firm to serve as the Auditor.
(g) Upon termination pursuant to Section 8(b), (c) or (d), the
Executive will have the option of purchasing his Company car
for the value of such car on the books of the Company at the
time of termination, adjusted for value of the Executive's cash
contribution to the purchase of the car.
(h) No Mitigation - No Offset. In the event of any termination of
employment under this Section 8, the Executive shall be under
no obligation to seek other employment and there shall be no
offset against amounts due the Executive under this Agreement
on account of any remuneration attributable to any subsequent
employment that he may obtain except as specifically provided
in this Section 8.
(i) Nature of Payments. Any amounts due under this Section 8 are in
the nature of severance payments considered to be reasonable by
the Companies and are not in the nature of a penalty.
9. Indemnification.
(a) The Companies agree that if the Executive is made a party, or
is threatened to be made a party, to any action, suit or
proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that he
is or was a director, officer or employee of the Companies or
is or was serving at the request of the Companies as a
director, officer, member, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit
plans, whether or not the basis of such Proceeding is the
Executive's alleged action in an official capacity while
serving as a director, officer, member, employee or agent, the
Executive shall be indemnified and held harmless by the
Companies to the fullest extent permitted or authorized by the
Companies' certificates of incorporation or bylaws or, if
greater, by the laws of the State of Kentucky, against all
cost, expense, liability and loss (including, without
limitation, reasonable attorney's fees, judgments, fines, ERISA
fines, excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by the Executive
in connection therewith, and such indemnification shall
continue as to the Executive even if he has ceased to be a
director, member, employee or agent of the Companies or other
entity and shall inure to the benefit of the Executive's heirs,
executors and administrators. The Companies shall advance to
the Executive all reasonable costs and expenses incurred by him
in connection with a Proceeding within 20 days after receipt by
the Companies of a written request for such advance. Such
request shall include an undertaking by the Executive to repay
the amount of such advance if it shall ultimately be determined
that he is not entitled to be indemnified against such costs
and expenses.
(b) Neither the failure of the Companies (including its board of
directors, independent legal counsel or stockholders) to have
made a determination prior to the commencement of any
proceeding concerning payment of amounts claimed by the
Executive under Section 10(a) that indemnification of the
Executive is proper because he has met the applicable standard
of conduct, nor a determination by the Companies (including its
board of directors, independent legal counsel or stockholders)
that the Executive has not met such applicable standard of
conduct, shall create a presumption that the Executive has not
met the applicable standard of conduct.
(c) The Companies agree to continue and maintain a directors' and
officers' liability insurance policy covering the Executive to
the extent either Company provides such coverage for its other
executive officers.
10. Representation.
The Companies represent and warrant that they are fully authorized
and empowered to enter into this Agreement and that the performance of
their obligations under this Agreement will not violate any agreement
between it and any other person, form or organization.
11. Entire Agreement.
This Agreement contains the entire understanding and agreement
between the Parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions,
negotiations and undertakings, whether written or oral, between the
Parties with respect thereto.
12. Amendment or Waiver.
No provision in this Agreement may be amended unless such amendment
is agreed to in writing and signed by the Executive and an authorized
officer of the Companies. No waiver by either Party of any breach by the
other Party of any condition or provision contained in this Agreement to
be performed by such other Party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same or any prior or subsequent
time. Any waiver must be in writing and signed by the Executive or an
authorized officer of the Companies, as the case may be.
13. Severability.
In the event that any provision or portion of this Agreement shall
be determined to be invalid or unenforceable for any reason, in whole or
in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
14. Survivorship.
The respective rights and obligations of the Parties hereunder
shall survive any termination of the Executive's employment to the
extent necessary to the intended preservation of such rights and
obligations.
15. Resolution of Disputes.
Any disputes arising under or in connection with this Agreement
shall, at the election of the Executive or the Companies, be resolved by
binding arbitration, to be held in Kentucky in accordance with the rules
and procedures of the American Arbitration Association. Judgment upon
the award rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof. Costs of the arbitration or litigation,
including, without limitation, attorneys' fees of both Parties, shall
be borne by the Companies, provided that if the arbitrator(s)
determine that the claims or defenses of the Executive were without
any reasonable basis, each Party shall bear his or its own costs.
16. Notices.
Any notice given to a party shall be in writing and shall be
deemed to have been given when delivered personally or sent by
certified or registered mail, postage prepaid, return receipt
requested, duly addressed to the Party concerned at the address
indicated below or to such changed address as such Party may
subsequently give such notice of:
If to the Companies: Mid-America Bancorp, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx
If to the Executive: XXXXXX X. SMALL
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first written above.
MID-AMERICA BANCORP, INC.
By: /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Title: Chairman of the Board
MID-AMERICA BANK OF LOUISVILLE &
TRUST COMPANY
By: /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Title: Chairman of the Board
/s/ Xxxxxx X. Small
XXXXXX X. SMALL
