EXHIBIT 10(a)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of
April, 1998 by and between MIDAMERICA BANCORP, INC., a Kentucky
corporation ("Bancorp"), and MIDAMERICA GIFT CERTIFICATE COMPANY,
a Kentucky corporation, ("GIFTCO" and 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 desire to continue the employment of
the Executive and to enter into an agreement embodying the terms of
such employment (this "Agreement"), and the Executive desires to
enter into this Agreement and accept such continued employment,
subject to the terms and provisions of 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 7 hereof, "Base
Salary" shall mean the salary provided for in Section 4
below or any increased salary granted to the Executive
pursuant to Section 4.
(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 Bancorp or GIFTCO,
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, after the date hereof 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 Bancorp;
(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) Bancorp 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 Bancorp 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) Bancorp 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(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 3 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 of Bancorp
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 the principal office of Bancorp,
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 2 below.
2. Term of Employment.
The employment of the Executive will continue for thirty-six
months from the date hereof or until the earlier termination of his
employment in accordance with the terms of this Agreement.
Thereafter, if not so terminated, employment shall be renewed for
successive thirty-six month periods or until the earlier
termination in accordance with the terms of this Agreement.
3. Position. Duties and Responsibilities.
(a) During the term of Employment, the Executive shall
continue to be employed as Executive Vice President of
Bancorp and President of GIFTCO 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
Executive Vice President of Bancorp or as President of
GIFTCOor any other office to which he may be elected or
appointed.
4. Base Salary.
The Executive shall be paid an annualized Base Salary, payable
in accordance with the regular payroll practices of the Companies,
of $123,300. 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.
5. 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.
6. 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.
7. 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 pension benefit that may become due pursuant to
Section 5 above, determined as of the date of such
termination;
(iii) 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 thirty-six months 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).
(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 5 above;
(vi) Continued accrual of credited service for the
purpose of the pension benefit provided under
Section 6 for thirty-six months;
(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 7(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
7(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 7(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 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 a sum equal to three times Base Salary. A
voluntary termination under this Section 7(c) shall be
effective upon 30 days prior notice to the Companies and
shall not be deemed a breach of this Agreement;
(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
7(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 7(b) above
following a Change in Control, 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 shall be adjusted pursuant to this Section 7(e)
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.
(f) Upon termination pursuant to Section 7(b), 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, if any, to the purchase of
the car.
(g) No Mitigation - No Offset. In the event of any
termination of employment under this Section 7, 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 7.
(h) Nature of Payments. Any amounts due under this Section 7
are in the nature of severance payments considered to be
reasonable by the Companies and are not in the nature of
a penalty.
8. 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 9(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.
9. Non-Competition. The Parties recognize that in the
course of Executive's employment with the Companies, Executive
has had and will continue to have access to a substantial amount
of confidential and proprietary information and trade secrets
relating to the business of GIFTCO, and that it would be
detrimental to the business of the Companies, and have a
substantial detrimental effect on the value to the Companies of
Executive's employment, if Executive were to compete with GIFTCO
upon termination of his employment. Executive therefore agrees,
in consideration of the Companies entering this Agreement and
establishing the additional provisions and protections outlined
above, that during the period of the term of his employment with
the Companies, whether pursuant to this Agreement or otherwise,
and for a period of three years thereafter, if and only if
Executive voluntarily terminates his employment or his employment
is terminated for cause, he shall not, without the prior written
consent of the Companies, directly as principal, partner,
director, or stockholder or through any corporation, partnership,
or other entity (including, without limitation, a sole
proprietorship), engage or participate in, or assist in any
manner or in any capacity, or have any interest in or make any
loan to, or otherwise be related with, any person, firm,
corporation, association, or other entity engaged in any business
competing in any material way with the business of GIFTCO as such
business exists as of the date of termination of employment. The
Parties recognize that the business of GIFTCO at the present time
is limited to specific geographical locations, but that the
intent and plans of GIFTCO are to market its products on a
nation-wide basis. The geographic limitation of this provision is
intended to be co-extensive with the actual scope of its
geographical operations at the time of termination of employment.
The Parties believe, in light of the facts known as of the date
of this Agreement, and after considering the nature and extent of
the Companies' business, the amount of compensation and other
benefits provided herein, and the damage that could be done to
the Companies' business by Executive's competing with the
Companies, that the foregoing covenant not to compete is
reasonable in time, scope, and geographical limitation. However,
if any court should construe the time, scope, or geographical
limitation of the covenant not to compete to be too broad or
extensive, it is the intention of the Parties that the contract
be automatically reformed, and as so reformed, enforced, to the
maximum limits which may be found to be reasonable by such court.
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
_______________________
_______________________
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first written above.
MIDAMERICA BANCORP, INC.
By: /s/ X. X. Xxxxxxxxx
Title: Vice Chairman and CEO
MIDAMERICA GIFT CERTIFICATE COMPANY
By: /s/Xxxx Xxxxx
Title: Secretary
/s/ Xxxxxx X. XxXxx
XXXXXX X. XXXXX
EXHIBIT 10(b)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of
April, 1998 by and between MIDAMERICA BANCORP, INC., a Kentucky
corporation and BANK OF LOUISVILLE, a Kentucky Combined Bank and
Trust Company, (together with their successors and assigns
permitted under this Agreement, the "Companies"), and XXXXX X.
XXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Companies desire to continue the employment of
the Executive and to enter into an agreement embodying the terms of
such employment (this "Agreement"), and the Executive desires to
enter into this Agreement and accept such continued employment,
subject to the terms and provisions of 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 7 hereof, "Base
Salary" shall mean the salary provided for in Section 4
below or any increased salary granted to the Executive
pursuant to Section 4.
(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, after the date hereof 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 7(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 3 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 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 2 below.
2. Term of Employment.
The employment of the Executive will continue for thirty-six
months from the date hereof or until the earlier termination of his
employment in accordance with the terms of this Agreement.
Thereafter, if not so terminated, employment shall be renewed for
successive thirty-six month periods or until the earlier
termination in accordance with the terms of this Agreement.
3. 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.
4. Base Salary.
The Executive shall be paid an annualized Base Salary, payable
in accordance with the regular payroll practices of the Companies,
of $115,000. 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.
5. 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.
6. 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.
7. 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 pension benefit that may become due pursuant to
Section 5 above, determined as of the date of such
termination;
(iii) 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 thirty-six months 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).
(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 for thirty-six months;
(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);
(C) 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 7(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
7(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 7(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 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 a sum equal to three times Base Salary. A
voluntary termination under this Section 7(c) shall be
effective upon 30 days prior notice to the Companies and
shall not be deemed a breach of this Agreement;
(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
7(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 7(b) above
following a Change in Control, 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 shall be adjusted pursuant to this Section 7(e)
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.
(f) Upon termination pursuant to Section 7(b), 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, if any, to the purchase of
the car.
(g) No Mitigation - No Offset. In the event of any
termination of employment under this Section 7, 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 7.
(i) Nature of Payments. Any amounts due under this Section 7
are in the nature of severance payments considered to be
reasonable by the Companies and are not in the nature of
a penalty.
8. 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 9(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.
9. Non-Competition. The Parties recognize that in the
course of Executive's employment with the Bank, Executive has had
and will continue to have access to a substantial amount of
confidential and proprietary information and trade secrets
relating to the business of the Bank, and that it would be
detrimental to the business of the Bank, and have a substantial
detrimental effect on the value to the Bank of Executive's
employment if Executive were to compete with the Bank upon
termination of his employment. Executive therefore agrees, in
consideration of the Bank entering this Agreement and
establishing the additional provisions and protections outlined
above, that during the period of the term of his employment with
the Bank, whether pursuant to this Agreement or otherwise, and
for a period of three years thereafter, if and only if Executive
voluntarily terminates his employment or his employment is
terminated for cause, he shall not, without the prior written
consent of the Bank, directly as principal, partner, director, or
stockholder or through any corporation, partnership, or other
entity (including, without limitation, a sole proprietorship),
engage or participate in, or assist in any manner or in any
capacity, or have any interest in or make any loan to, or
otherwise be related with, any person, firm, corporation,
association, or other entity engaged in any business in the
Commonwealth of Kentucky competing in any material way with the
business of the Bank as such business exists as of the date of
termination of employment.
The Parties believe, in light of the facts known as of the date
of this Agreement, and after considering the nature and extent of
the Bank's business, the amount of compensation and other
benefits provided herein, and the damage that could be done to
the Bank's business by Executive's competing with the Bank, that
the foregoing covenant not to compete is reasonable in time,
scope, and geographical limitation. However, if any court should
construe the time, scope, or geographical limitation of the
covenant not to compete to be too broad or extensive, it is the
intention of the Parties that the contract be automatically
reformed, and as so reformed, enforced, to the maximum limits
which may be found to be reasonable by such court.
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 X. XXXXX
_______________________
_______________________
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first written above.
MIDAMERICA BANCORP, INC.
By: /s/ X. X. Xxxxxxxxx
Title: Vice Chairman and CEO
BANK OF LOUISVILLE
By: /s/ X. X. Xxxxxxxxx
Title: Vice Chairman and CEO
/s/ Xxxxx X. Xxxxx
XXXXX X. XXXXX
EXHIBIT 10(c)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of
November, 1998, by and between MIDAMERICA BANCORP, INC., a Kentucky
corporation and BANK OF LOUISVILLE, a Kentucky Combined Bank and
Trust Company, (together with their successors and assigns, the
"Companies"), and XXXXXX X. XXXXX (the "Executive").
1. Term of Employment.
The employment of the Executive will continue for twelve
months from the date hereof or until the earlier termination of her
employment in accordance with the terms of this Agreement.
Thereafter, if not so terminated, employment shall be renewed for
successive twelve month periods or until the earlier termination in
accordance with the terms of this Agreement.
2. Salary.
The Executive shall be paid an annualized Base Salary, payable
in accordance with the regular payroll practices of the Companies,
of $106,000. The Base Salary shall be reviewed no less frequently
than annually for increase at the sole discretion of the Board and
its Executive Compensation Committee. Executive will continue to
participate in the benefit and bonus programs of the Companies.
3. 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 a lump sum equal
to three times Base Salary. Also, immediately following a Change in
Control, all amounts, entitlements or benefits in which she is not
yet vested shall become fully vested. In addition, if Executive
continues in the employ of the Companies for a period of two years
following the effective date of the Change in Control, she may then
voluntarily terminate her employment and in such a case would
receive a sum equal to three times Base Salary. A voluntary
termination under this Section 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, "Change in Control"
means that Xxxxxxx X. Xxxxx (including his spouse, children,
grandchildren, or any trusts established for the benefit of any of
them) cease to hold ten percent (10%) or more of all outstanding
voting shares of Bancorp.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first written above.
MIDAMERICA BANCORP, INC.
By: /s/ Xxxxxxx X. Xxxxx
Title: Chairman of the Board
BANK OF LOUISVILLE
By: /s/ Xxxxxxx X. Xxxxx
Title: Chairman of the Board
/s/ Xxxxxx X. Xxxxx
XXXXXX X. XXXXX
