EXHIBIT 10.2
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered
into as of this 17th day of September, 2003, by and between Classic Bancshares,
Inc. (the "Company") and Xxxxx X. Xxxxxxx (the "Employee").
WHEREAS, the Employee is currently serving as the Chief Operating
Officer and the Chief Financial Officer of the Company and of its wholly-owned
subsidiary, Classic Bank (the "Bank"); and
WHEREAS, the Employee has an existing employment agreement with the
Company, dated as of July 25, 2000 (the "Prior Agreement"), which the Employee
is willing to terminate in consideration of this Agreement becoming effective;
and
WHEREAS, the board of directors of the Company (the "Board of
Directors") believes it is in the best interests of the Company and its
subsidiaries to enter into this Agreement with the Employee in order to assure
continuity of management and to reinforce and encourage the continued attention
and dedication of the Employee to her assigned duties without distraction in the
event of a change in control of the Company or the Bank, although no such change
is now contemplated; and
WHEREAS, the Board of Directors has approved and authorized the
execution of this Agreement with the Employee to take effect as stated in
Section 2 hereof;
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein, it is AGREED as
follows:
1. Definitions.
(a) The term "Change in Control" means the occurrence of
any one of the following events: (1) an event of a nature that results in
an acquisition of control of the Company or the Bank within the meaning of the
Bank Holding Company Act or the Change in Bank Control Act and applicable
regulations thereunder (or any successor statute or regulation); (2) an event
with respect to the Company that would be required to be reported in response to
Item 1 of the Current Report on Form 8_K, as in effect on the date of this
Agreement, pursuant to Section 13 or 15(d) of the Securities Exchange Act of
0000 (xxx "Xxxxxxxx Xxx"); (3) any person (as the term is used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the beneficial owner (as defined in
Rule 13d_3 under the Exchange Act) directly or indirectly of securities of the
Company or the Bank representing 20% or more of the combined voting power of the
Company's or the Bank's outstanding securities; (4) individuals who are members
of the Board of Directors of the Company as of the date of this Agreement (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, PROVIDED THAT any person becoming a director subsequent to the date of
this Agreement whose election was approved by a vote of at least three_quarters
of the directors comprising the Incumbent Board, or whose nomination for
election by the Company's stockholders was approved by the nominating committee
serving under the Incumbent Board, shall be considered a member of
the Incumbent Board; (5) consummation of a reorganization, merger, consolidation
or similar transaction in which the Company is not the resulting entity; (6)
consummation of a reorganization, merger, consolidation or similar transaction
in which the Company is the resulting entity and at the completion of which the
stockholders of the Company who were stockholders of the Company immediately
prior to the transaction hold less than 60% of the outstanding stock of the
Company immediately after consummation of the transaction; or (7) a sale of all
or substantially all of the assets of the Company or a transaction or related
transactions at the conclusion of which all or substantially all of the assets
of the Bank (i) are not directly or indirectly held by the Company or (ii) are
directly or indirectly held by the Company but the stockholders of the Company
immediately prior to the transaction or related transactions hold less than 60%
of the outstanding stock of the Company immediately after the transaction or
related transactions; PROVIDED THAT the term "Change in Control" shall not
include an acquisition of securities by an employee benefit plan of the Company
or any of its subsidiaries. In the application of regulations under the Bank
Holding Company Act or the Change in Bank Control Act to a determination of a
Change in Control under this Agreement, determinations to be made by the
applicable federal banking regulator under such regulations shall be made by the
Board of Directors.
(b) The term "Consolidated Subsidiaries" means any
subsidiary or subsidiaries of the Company (or its successors) that are part of
the consolidated group of the Company (or its successors) for federal income tax
reporting (the "Consolidated Group").
(c) The term "Date of Termination" means the date upon
which the Employee's employment with the Company or the Bank or both ceases, as
specified in a notice of termination pursuant to Section 8 of this Agreement.
(d) The term "Effective Date" means September 17, 2003.
(e) The term "Involuntarily Termination" means the
termination of the employment of Employee (i) by either the Company or the Bank
or both without her express written consent; or (ii) by the Employee by reason
of a material diminution of or interference with her duties, responsibilities or
benefits, including (without limitation) any of the following actions unless
consented to in writing by the Employee: (1) a change in the principal workplace
of the Employee to a location outside of a 30 mile radius from the Bank's
headquarters as of the date hereof; (2) a material demotion of the Employee; (3)
a material reduction in the number or seniority of personnel reporting to the
Employee or a material reduction in the frequency with which, or in the nature
of the matters with respect to which, such personnel are to report to the
Employee, other than as part of a Bank- or Company-wide reduction in staff; (4)
a reduction in the Employee's salary or a material adverse change in the
Employee's perquisites, benefits, contingent benefits or vacation, other than as
part of an overall program applied uniformly and with equitable effect to all
members of the senior management of the Bank or the Company; (5) a material
permanent increase in the required hours of work or the workload of the
Employee; or (6) the failure of the Board of Directors (or a board of directors
of any successor of the Company) to elect her as Chief Operating Officer and
Chief Financial Officer of the Company (or any successor of the Company) or any
action by the Board of Directors (or the board of directors of any successor of
the Company) removing her from any of such offices, or the failure of the board
of directors of the Bank (or any successor of the Bank) to elect her as Chief
Operating Officer and Chief Financial Officer of the Bank (or any successor of
the Bank)
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or any action by such board (or the board of any successor of the Bank) removing
her from any of such offices. The term "Involuntary Termination" does not
include Termination for Cause or termination of employment due to death or
permanent disability or suspension or temporary or permanent prohibition from
participation in the conduct of the affairs of a depository institution under
Section 8 of the Federal Deposit Insurance Act.
(f) The terms "Termination for Cause" and "Terminated
For Cause" mean termination of the employment of the Employee with either the
Company or the Bank, as the case may be, because of the Employee's personal
dishonesty, incompetence, willful misconduct, breach of a fiduciary duty
involving personal profit, intentional failure to perform stated duties, willful
violation of any law, rule, or regulation (excluding violations which do not
have a material adverse effect on the Company or the Bank) or final
cease-and-desist order, or material breach of any provision of this Agreement.
No act or failure to act by the Employee shall be considered willful unless the
Employee acted or failed to act with an absence of good faith and without a
reasonable belief that her action or failure to act was in the best interest of
the Company. The Employee shall not be deemed to have been Terminated for Cause
unless and until there shall have been delivered to the Employee a copy of a
resolution, duly adopted by the affirmative vote of not less than a majority of
the entire membership of the Board of Directors at a meeting of the Board duly
called and held for such purpose (after reasonable notice to the Employee and an
opportunity for the Employee, together with the Employee's counsel, to be heard
before the Board), stating that in the good faith opinion of the Board of
Directors the Employee has engaged in conduct described in the preceding
sentence and specifying the particulars thereof in detail.
2. Term; Termination of Severance Agreement. The term of this
Agreement shall be a period of three years commencing on the Effective Date,
subject to earlier termination as provided herein. Beginning on the first day
following of the Effective Date, and on each day thereafter, the term of this
Agreement shall be extended for a period of one day in addition to the
then-remaining term, PROVIDED THAT the Company has not given notice to the
Employee in writing in connection with an annual performance review occurring
within 60 days of the end of the Company's fiscal year that the term of this
Agreement shall not be extended further. Reference herein to the term of this
Agreement shall refer to both such initial term and such extended terms. The
Prior Agreement shall terminate immediately prior to the Effective Date.
3. Employment. The Employee is employed as the Chief Operating
Officer and Chief Financial Officer of the Company and as the Chief Operating
Officer and Chief Financial Officer of the Bank. As such, the Employee shall
render such administrative and management services as are customarily performed
by persons situated in similar executive capacities and shall have such other
powers and duties as the Board of Directors or the board of directors of the
Bank may prescribe from time to time. The Employee shall also render services to
any subsidiary or subsidiaries of the Company or the Bank as requested by the
Company or the Bank from time to time consistent with her executive position.
The Employee shall devote her best efforts and reasonable time and attention to
the business and affairs of the Company and the Bank to the extent necessary to
discharge her responsibilities hereunder. The Employee may (i) serve on
corporate or charitable boards or committees and (ii) manage personal
investments, so long as such activities do not interfere materially with
performance of her responsibilities hereunder.
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4. Cash Compensation.
(a) Salary. The Company agrees to pay the Employee
during the term of this Agreement a base salary (the "Company Salary") the
annualized amount of which shall be not less than the annualized aggregate
amount of the Employee's base salary from the Company and any Consolidated
Subsidiaries in effect at the Effective Date, PROVIDED THAT any amounts of
salary actually paid to the Employee by any Consolidated Subsidiaries shall
reduce the amount to be paid by the Company to the Employee. The Company Salary
shall be paid no less frequently than monthly and shall be subject to customary
tax withholding. The amount of the Employee's Company Salary shall be increased
(but shall not be decreased) from time to time by the Board of Directors or the
board of directors of any of the Consolidated Subsidiaries after the Effective
Date.
(b) Bonuses. The Employee shall be entitled to
participate in an equitable manner with all other executive officers of the
Company and the Bank in such performance-based and discretionary bonuses, if
any, as are authorized and declared by the Board of Directors for executive
officers of the Company and by the board of directors of the Bank for executive
officers of the Bank. No other compensation provided for in this Agreement shall
be deemed a substitute for the Employee's right to participate in such bonuses
when and as declared.
(c) Expenses. The Employee shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the Employee in
performing services under this Agreement in accordance with the policies and
procedures applicable to the executive officers of the Company and the Bank,
PROVIDED THAT the Employee accounts for such expenses as required under such
policies and procedures.
5. Benefits.
(a) Participation in Benefit Plans. The Employee shall
be entitled to participate, to the same extent as executive officers of the
Company and the Bank generally, in all plans of the Company and the Bank
relating to pension, retirement, thrift, profit-sharing, savings, group or other
life insurance, hospitalization, medical and dental coverage, travel and
accident insurance, education, cash bonuses, and other retirement or employee
benefits or combinations thereof. In addition, the Employee shall be entitled to
be considered for benefits under all of the stock and stock option related plans
in which the Company's or the Bank's executive officers are eligible or become
eligible to participate.
(b) Health Benefits. The Employee shall be entitled, for
the benefit of herself and her spouse, to the same group
hospitalization, medical, dental, prescription drug and other health benefits as
are available to executive officers of the Company and/or the Bank generally on
terms as favorable to her, including amounts of coverage and deductibles and
other costs to her, as apply to executive offices of the Company and/or the Bank
generally, PROVIDED THAT when the Employee or her spouse is eligible for
Medicare coverage, her coverage under this Section 5(b) shall be secondary to
Medicare coverage (the "Health Benefits") and provided further that the
continued Health Benefits under this Agreement shall be in addition to, and not
in lieu of any COBRA continuation rights the Employee may have under Section
4980B of the Code.
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(c) Automobile Lease. The Company or the Bank shall
lease an automobile from the Employee for the use of the Employee for a monthly
lease amount at least as great as the monthly lease amount in effect on any
anniversary of the Effective Date of this Agreement.
(d) Other Fringe Benefits. The Employee shall be
eligible to participate in, and receive benefits under, any other fringe benefit
plans or perquisites which are or may become generally available to the
Company's or the Bank's executive officers.
6. Vacations; Leave. The Employee shall be entitled to annual paid
vacation in accordance with the policies established by the Board of Directors
and the board of directors of the Bank for executive officers of the Company and
the Bank, and to voluntary leaves of absence, with or without pay, from time to
time at such times and upon such conditions as the Board of Directors may
determine in its discretion.
7. Termination of Employment.
(a) Involuntary Termination. In the event of the
Involuntary Termination of the Employee, if the Employee has offered to continue
to provide services as contemplated by this Agreement, and such offer has been
declined, then, subject to Section 7(b) of this Agreement, the Company shall, as
liquidated damages:
(i) during the remaining term of this
Agreement following the Date of Termination (the "Remaining Term"), (A) pay to
the Employee in cash monthly one-twelfth of the Company Salary at the annual
rate in effect immediately prior to the Date of Termination and one-twelfth of
the average annual amount of cash bonus and cash incentive compensation of the
Employee, based on the average amounts of such compensation earned by the
Employee for the two full fiscal years preceding the Date of Termination,
PROVIDED THAT such payments shall be reduced by the amounts of cash
compensation, if any, actually paid to the Employee by the Consolidated
Subsidiaries for such period; and (B) continue to provide the benefits described
in Section 5(c) and Section 5(d) of this Agreement;
(ii) within 30 days following the date on
which the term of this Agreement expires (the "Expiration Date"), pay to the
Employee in a lump sum in cash an amount equal to the excess of (A) the present
value of the aggregate benefits to which she would be entitled under any and all
qualified and non-qualified defined benefit pension plans covering executive
officers of the Company or the Bank or under which she was covered on the
Effective Date as if she were 100% vested thereunder, had continued to be
employed by the Company and the Bank during the Remaining Term and had received
as covered compensation during such period the amounts payable to her under
Section 7(a)(i) hereof, over (B) the present value of the benefits to which she
is actually entitled under such plans as of the Expiration Date;
(iii) within 30 days following the
Expiration Date, pay to the Employee in a lump sum in cash an amount equal to
the present value of the employer contributions to which she would have been
entitled under any and all qualified and non-qualified defined contribution
plans maintained by or covering executive officers of the Company or the Bank or
under which she was covered on the Effective Date as if she were 100% vested
thereunder, had continued to be employed by the Company and the Bank during the
Remaining Term and had received as covered
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compensation during such period the amounts payable to her under Section 7(a)(i)
hereof and assuming that she had made during such period the maximum amount of
employee contributions, if any, required or permitted under such plans for an
individual receiving such covered compensation;
(iv) during the Remaining Term, the Company
shall provide the Health Benefits to the Employee on the same terms as if she
had continued to be employed under this Agreement; and
(v) following the expiration of the
Remaining Term, the Company shall make the Health Benefits available to the
Employee on the same terms as if she had continued to be employed under this
Agreement, PROVIDED THAT the Employee reimburses the Company for the amount the
Company pays to third parties that is attributable to the Health Benefits for
the Employee and her spouse.
For purposes of this Section 7, present value shall be determined by
using the UP-1984 mortality table and the same discount rate as would apply to a
determination of present value under Section 280G of the Internal Revenue Code
of 1986, as amended (the "Code").
(b) Reduction of the Company's Obligations Under Section
7(a)(i).
(i) The Company's obligations under Section
7(a)(i) hereof (A) to pay cash compensation shall be reduced by the amount of
the Employee's cash income, if any, earned from providing services other than to
the Company (or its successors) or the Consolidated Subsidiaries during the
Remaining Term; and (B) to provide benefits described in Section 5(c) shall be
suspended during such time, if any, that an employer other than the Company or
its successors or the Consolidated Subsidiaries provides comparable benefits
during the Remaining Term. For purposes of this Section 7(b), the term "cash
income" shall include amounts of salary, wages, bonuses, incentive compensation
and fees paid to the Employee in cash but shall not include shares of stock,
stock options, stock appreciation rights or other earned income not paid to the
Employee in cash.
(ii) The Employee agrees that in the event
she becomes entitled to liquidated damages pursuant to Section 7(a), throughout
the Remaining Term, she shall promptly inform the Company of the nature and
amounts of cash income and benefits comparable to those described in Section
5(c) and Section 5(d) which she earns from providing services other than to the
Company (or its successors) or the Consolidated Subsidiaries, and the nature of
benefits she receives from another employer that are similar to the Health
Benefits, and shall provide such documentation of such cash income and benefits
as the Company may reasonably request. In the event of changes to such cash
income and benefits from time to time, the Employee shall inform the Company of
such changes, in each case within 30 days after the change occurs, and shall
provide such documentation concerning the change as the Company may request.
(iii) To the extent, if any, that the
Employee receives from another employer following Involuntary Termination
benefits substantially similar to the benefits under Section 5(b), (c) and (d)
hereunder on terms substantially as favorable to her as the benefits under
Section 5(b), (c) and (d) hereunder, the Company's obligation to provide such
benefits under Section 7(a) shall
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be reduced so long as the Employee receives such substantially similar benefits
on such terms from another employer.
(c) Change in Control. Subject to Section 7(d) below,
if, in connection with or within 18 months following a Change in Control,
the Employee experiences Involuntary Termination, the Company shall pay to the
Employee (in addition to any payments and benefits to which the Employee is
entitled under Section 7(a) hereof) within 30 days following the Date of
Termination, in a lump sum in cash, an amount equal to 299% of the Employee's
"base amount" as defined in Section 280G of the Code.
(d) Certain Reduction of Payments. Notwithstanding any
other provisions of this Agreement, if payments and benefits under this
Agreement, together with any other payments and benefits received or to be
received by the Employee in connection with a change in control, would cause any
amount to be nondeductible by the Bank or the Company for federal income tax
purposes pursuant to Section 280G of the Code, then payments and benefits under
this Agreement shall be reduced (not less than zero) to the extent necessary so
as to maximize payments and benefits to the Employee without causing any amount
to become nondeductible by the Bank or the Company by reason of Section 280G of
the Code. The Employee shall determine the allocation of such reduction among
payments and benefits to the Employee.
(e) Termination for Cause. In the event of Termination
for Cause, the Company shall pay the Employee her Company Salary through
the Date of Termination and the Company and its subsidiaries shall have no
further obligation to the Employee under this Agreement after the Date of
Termination.
(f) Voluntary Termination. The Employee may terminate
her employment at any time by a notice pursuant to Section 8 of this
Agreement. If the Employee terminates her employment other than by reason of an
Involuntary Termination under Section 1(e)(ii) of this Agreement, such
termination of employment shall constitute a "Voluntary Termination" and the
Company shall be obligated to the Employee for the amount of her Company Salary
and benefits only through the Date of Termination, at the time such payments are
due, and shall have no further obligation to the Employee under this Agreement
except pursuant to Section 5(b) hereof.
(g) Death. In the event of the death of the Employee
while employed under this Agreement and prior to any termination of
employment, (i) the Company shall pay to the Employee's estate, or such person
as the Employee may have previously designated in writing, the Company Salary
which was not previously paid to the Employee and which she would have earned if
she had continued to be employed under this Agreement through the last day of
the calendar month in which the Employee died and (ii) the Company shall pay to
the Employee's estate, or such person as the Employee may have previously
designated in writing, the amounts of any benefits or awards which, pursuant to
the terms of any applicable plan or plans, were earned with respect to the
fiscal year in which the Employee died and which the Employee would have been
entitled to receive if she had continued to be employed, and the amount of any
bonus or incentive compensation for such fiscal year which the Employee would
have been entitled to receive if she had continued to be employed, pro-rated in
accordance with the portion of the fiscal year prior to her death; PROVIDED THAT
such amounts shall be payable when and as ordinarily payable under the
applicable plans.
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(h) Disability. If the Employee becomes disabled as
defined in the then current disability plan of the Company or the Bank, or if
the Employee is otherwise unable due to disability to serve in her present
capacity, the Employee shall be entitled to receive the group and other
disability income benefits, if any, of the type then provided by the Company and
the Bank for executive officers (the "Disability Benefits"). In the event of
such disability, this Agreement shall not be suspended. However, the Company
shall be obligated to pay the Employee compensation pursuant to Sections 4(a)
and (b) hereof only to the extent that such compensation, at the rate then in
effect and in the absence of such disability, would exceed the Disability
Benefits she receives. In addition, the Company shall have the right, upon
resolution of the Board of Directors, to discontinue paying cash compensation
pursuant to Sections 4(a) and (b) beginning six months following a determination
that Employee qualifies for benefits under this Section 7(h).
8. Notice of Termination. In the event that the Company or the Bank,
or both, desire to terminate the employment of the Employee during the term of
this Agreement, the Company or the Bank, or both, shall deliver to the Employee
a written notice of termination, stating whether such termination constitutes
Termination for Cause or Involuntary Termination, setting forth in reasonable
detail the facts and circumstances that are the basis for the termination, and
specifying the date upon which employment shall terminate, which date shall be
at least 60 days after the date upon which the notice is delivered, except in
the case of Termination for Cause. In the event that the Employee determines in
good faith that she has experienced an Involuntary Termination of her
employment, she shall send a written notice to the Company stating the
circumstances that constitute such Involuntary Termination and the date upon
which her employment shall have ceased due to such Involuntary Termination. In
the event that the Employee desires to effect a Voluntary Termination, she shall
deliver a written notice to the Company, stating the date upon which employment
shall terminate, which date shall be at least 90 days after the date upon which
the notice is delivered, unless the Company and the Employee agree to a date
sooner.
9. Attorneys' Fees. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by the
Employee as a result of (i) the Employee's contesting or disputing any
termination of employment or (ii) the Employee's seeking to obtain or enforce
any right or benefit provided by this Agreement or by any other plan or
arrangement maintained by the Company (or its successors) or the Consolidated
Subsidiaries under which the Employee is or may be entitled to receive benefits;
PROVIDED THAT the Company's obligation to pay such fees and expenses is subject
to (i) with respect to actions initiated by the Employee, the Employee's
prevailing on the matters in dispute and (ii) with respect to any action
initiated by the Company or the Bank, the Employee's prevailing on the matters
in dispute or having been determined to have acted reasonably and in good faith.
10. No Assignments.
(a) This Agreement is personal to the parties hereto,
and no party may assign or delegate any of its rights or obligations
hereunder without first obtaining the written consent of the other party,
PROVIDED, HOWEVER, THAT the Company shall require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) by
an assumption agreement in form and substance satisfactory to the Employee, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to
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perform it if no such succession or assignment had taken place. Failure of the
Company to obtain such an assumption agreement prior to the effectiveness of any
such succession or assignment shall be a breach of this Agreement and shall
entitle the Employee to, among other things, compensation and benefits from the
Company in the same amount and on the same terms as provided in Section 7 hereof
in the event of Involuntary Termination in connection with a Change in Control.
For purposes of implementing the provisions of this Section 10(a), the date on
which any such succession becomes effective shall be deemed the Date of
Termination.
(b) This Agreement and all rights of the Employee
hereunder shall inure to the benefit of and be enforceable by the Employee's
personal and legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees.
11. Notice. For the purposes of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered or sent by
certified mail, return receipt requested, postage prepaid, to the Company at its
home office, to the attention of the Board of Directors with a copy to the
Secretary of the Company, or, if to the Employee, to such home or other address
as the Employee has most recently provided in writing to the Company.
12. Amendments. No amendments or additions to this Agreement shall
be binding unless in writing and signed by both parties, except as herein
otherwise provided.
13. Headings. The headings used in this Agreement are included
solely for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
14. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
15. Governing Law. This Agreement shall be governed by the laws of
the Commonwealth of Kentucky.
16. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
Attest: CLASSIC BANCSHARES, INC.
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Xxxx Xxxxxxx -------------------------------
Secretary By: Xxxxx X. Xxxxxxx
Its: President and Chief Executive Officer
EMPLOYEE
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Xxxxx X. Xxxxxxx
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