AMENDMENT NUMBER ONE TO THE
SENIOR EXECUTIVE SEVERANCE AGREEMENT
Pursuant to the power reserved in Section 12 of the Senior Executive
Severance Agreement ("Agreement") made and entered into between Stock Yards Bank
and Trust Company, a Kentucky banking corporation ("Bank"), AND XXXXX X. XXXXXX
("Executive"), the Bank and the Executive hereby amend the Agreement, effective
this 27TH day of February, 1997, as follows:
Section 1
By amending Section 1, DEFINITIONS, to revise the definition of "CHANGE OF
CONTROL" to read as follows:
A "CHANGE IN CONTROL" of SY Bancorp shall be deemed to have occurred if:
(i) any Person (as defined in this definition) is or becomes the Beneficial
Owner (as defined in this definition) of securities of SY Bancorp
representing 20% or more of the combined voting power of SY Bancorp's then
outstanding securities (unless (A) such Person is the Beneficial Owner of
20% or more of such securities as of April 26, 1995 or (B) the event
causing the 20% threshold to be crossed is an acquisition of securities
directly from SY Bancorp);
(ii) during any period of two consecutive years beginning after April 26,
1995, individuals who at the beginning of such period constitute the Board
of Directors of SY Bancorp and any new director (other than a director
designated by a person who has entered into an agreement with SY Bancorp to
effect a transaction described in clause (i), (iii) or (iv) of this Change
in Control definition) whose election or nomination for election was
approved by a vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved cease for
any reason to constitute a majority of the Board of Directors of SY
Bancorp;
(iii) the shareholders of SY Bancorp approve a merger or consolidation of
SY Bancorp with any other corporation (other than a merger or consolidation
which would result in the voting securities of SY Bancorp outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the entity
surviving such merger or consolidation), in combination
with voting securities of SY Bancorp or such surviving entity held by a
trustee or other fiduciary pursuant to any employee benefit plan of SY
Bancorp or such surviving entity or of any subsidiary of SY Bancorp or such
surviving entity, at least 80% of the combined voting power of the
securities of SY Bancorp or such surviving entity outstanding immediately
after such merger or consolidation); or
(iv) the shareholders of SY Bancorp approve a plan of complete liquidation
or dissolution of SY Bancorp or an agreement for the sale or disposition by
SY Bancorp of all or substantially all of SY Bancorp's assets.
(v) For purposes of the definition of Change in Control, "Person" shall
have the meaning ascribed to such term in Section 3(a)(9) of the Securities
Exchange Act of 1934, as amended, as supplemented by Section 13(d)(3) of
such Act; provided, however, that Person shall not include (i) SY Bancorp,
any subsidiary or any other Person controlled by SY Bancorp, (ii) any
trustee or other fiduciary holding securities under any employee benefit
plan of SY Bancorp or of any subsidiary, or (iii) a corporation owned,
directly or indirectly, by the shareholders of SY Bancorp in substantially
the same proportions as their ownership of securities of SY Bancorp.
(vi) For purposes of the definition of Change in Control, a Person shall be
deemed the "Beneficial Owner" of any securities which such Person, directly
or indirectly, has the right to vote or dispose of or has "beneficial
ownership" (within the meaning of Rule 13d-3 under the Securities Exchange
Act of 1934, as amended) of, including pursuant to any agreement,
arrangement or understanding (whether or not in writing); provided,
however, that: (i) a Person shall not be deemed the Beneficial Owner of any
security as a result of an agreement, arrangement or understanding to vote
such security (x) arising solely from a revocable proxy or consent given in
response to a public proxy or consent solicitation made pursuant to, and in
accordance with, the Securities Exchange Act of 1934, as amended, and the
applicable rules and regulations thereunder or (y) made in connection with,
or to otherwise participate in, a proxy or consent solicitation made, or to
be made, pursuant to, and in accordance with, the applicable provisions of
the Securities Exchange Act of 1934, as amended, and the applicable rules
and regulations thereunder; in either case described in clause (x) or
clause (y) above, whether or not such agreement, arrangement or
understanding is also then reportable by such Person on Schedule 13D under
the Securities Exchange Act of 1934,
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as amended (or any comparable or successor report); and (ii) a Person
engaged in business as an underwriter of securities shall not be deemed to
be the Beneficial Owner of any securities acquired through such Person's
participation in good faith in a firm commitment underwriting until the
expiration of forty days after the date of such acquisition.
Section 2
By amending Section 1, DEFINITIONS, to revise the preamble to definition of
"FORCED RESIGNATION" to read as follows:
"FORCED RESIGNATION" means a resignation at the Executive's initiative
following a Change in Control and the occurrence of any of the following
triggering events, provided such resignation occurs within twelve (12)
months after a triggering event or, if earlier, within thirty-six (36)
months after a Change in Control:
Section 3
By amending Section 1, DEFINITIONS, to add a definition of the term
"Acquisition Transaction" to read as follows:
"ACQUISITION TRANSACTION" shall be deemed to have taken place if the
shareholders of SY Bancorp approve (a) a merger or consolidation of SY
Bancorp with any other corporation, other than a merger or
consolidation which would result in the voting securities of SY
Bancorp which are outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining outstanding
or by being converted into voting securities of the entity surviving
such merger or consolidation) at least 80% of the voting securities of
SY Bancorp or such surviving entity outstanding immediately after such
merger or consolidation or (b) a plan of complete liquidation or
dissolution of SY Bancorp or an agreement for the sale or disposition
by SY Bancorp of all or substantially all of SY Bancorp's assets.
Section 4
By amending Section 2 to renumber the existing language in Section 2 as
Section 2(b) and to add a new Section 2(a) to read as follows:
(a)(i) SEVERANCE PAYMENT UPON INVOLUNTARY TERMINATION PRIOR TO
ACQUISITION TRANSACTION. Except as set forth in Section 2(a)(ii), if
the Executive's employment with the Bank is involuntarily terminated
by the Board of Directors of the Bank during the Term and within a
twelve month period beginning on the later of
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the date the Board of Directors approves the going forward of
discussions with a potential buyer or buyers for SY Bancorp or the
Bank or the date the Executive has expressed the Executive's written
opposition to such sale or potential sale of SY Bancorp or the Bank to
the Board of Directors, the Bank shall pay the Executive (A) his full
salary through the date of such termination, which termination shall
not be effective until the later of the effective date set forth in
the Notice of Termination or two weeks following written notice to the
Executive, and (B) the Severance Payment described in this Section
2(a)(i). On the effective date of an Acquisition Transaction which
results from such discussions, the Bank shall pay to the Executive a
severance payment equal to 299 percent of the Executive's Base Amount
(the "Severance Payment"). The Severance Payment under this Section
2(a)(i) shall be payable to the Executive in a lump sum, in
immediately available funds, and shall be subject to any applicable
payroll or other taxes required to be withheld. Such Severance Payment
shall be in lieu of any other severance payment provided for by the
Bank in accordance with its standard of practice and operations for
Executive at the time of payment of this Severance Payment.
(a)(ii) FORFEITURE OF SEVERANCE PAYMENT. No payment shall be made
under Section 2(a)(i) to the Executive if (A) the Executive
voluntarily divulges or otherwise discloses, directly or indirectly,
any trade secrets or other confidential information concerning the
business, policies, or sale or potential sale of SY Bancorp or the
Bank which is not lawfully attainable from public sources, unless such
disclosure is required by law or authorized by the Bank, (B) the
Executive is involuntarily terminated by the Bank for Cause, (C) the
Executive is terminated due to death, Retirement or Permanent
Disability, or (D) the Executive fails to fulfill the Executive's
responsibilities as an officer and/or director of the Bank and SY
Bancorp during the period after the above-mentioned Board of
Director's approval and while the Executive remains employed by the
Bank; provided, however, following public announcement by the Bank or
SY Bancorp of an Acquisition Transaction or proposed Acquisition
Transaction, the Executive shall not be deemed to have breached his
responsibilities as an officer or director of the Bank and SY Bancorp
and thereby to have forfeited his entitlement to the severance payment
described in Section 2(a)(i) above if he expresses publicly his
opposition to such transaction or proposed transaction, solicits votes
or proxies from shareholders of SY Bancorp against the transaction or
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otherwise solicits or encourages others to oppose such transaction.
Section 5
By amending the new Section 2(b) to read as follows:
(b) SEVERANCE PAYMENT UPON TERMINATION FOLLOWING CHANGE IN CONTROL. During
the Term, if the Executive's employment with the Bank terminates (either at
the initiative of the Bank or the Executive) within thirty-six (36) months
after a Change in Control for any reason whatsoever other than for Cause or
as a result of the Executive's death, Retirement, or Permanent Disability,
the Bank shall pay the Executive his full salary through the date of such
termination, which termination shall not be effective until the later of
two (2) weeks following written notice thereof to the Executive or the
effective date set forth in the notice of termination. In addition, for a
termination at the initiative of the Executive (other than a Forced
Resignation) that occurs within twenty-four (24) months after a Change in
Control, the Bank shall pay the Severance Payment to the Executive as of
the effective date of such termination. For a termination at the initiative
of the Executive (other than a Forced Resignation) that occurs more than
twenty-four (24) months but less than thirty-six (36) months after a Change
in Control, the Bank shall pay the Executive as of the effective date of
such termination 2/3 of the Severance Payment. For a termination at the
Bank's initiative (other than for Cause) that occurs within thirty-six (36)
months after a Change in Control or for a Forced Resignation, the Bank
shall pay the Severance Payment to the Executive as of the effective date
of such termination. Notwithstanding any provision to the contrary, in no
event shall any Severance Payment (or portion thereof) be paid to the
Executive if the Executive's employment is terminated for Cause or as a
result of the Executive's death, Retirement, or Permanent Disability.
Further, the Severance Payment (or portion thereof) shall be payable to the
Executive in a lump sum, in immediately available funds, on the date the
Executive's termination is effective, and shall be subject to any
applicable payroll or other taxes required to be withheld. The Severance
Payment shall be in lieu of any other severance payment provided for by the
Bank in accordance with its standard of practice and operations for
Executive at the time of payment of the Severance Payment.
Section 6
By amending Section 2 to add a new Section 2(c) to read as follows:
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(c) NON-DUPLICATION OF PAYMENTS. In no event shall the Executive
receive a payment under both Sections 2(a) and 2(b), and to the extent
the Executive satisfies the conditions for payment under both such
sections, the Bank shall pay to the Executive the payment computed
under whichever section results in the largest payment to the
Executive.
Section 7
By amending Section 3(a), ACCRUED VACATION AND SICK PAY, to read as
follows:
The Executive shall be entitled to receive, in accordance with the
Bank's standard employment policies in effect as of the date of this
Agreement (or such more favorable policies as exist on the date of
such termination), payment for any vacation and sick days which have
accrued for the year in which the termination occurs but have not yet
been paid to the Executive.
Section 8
By amending Section 4(a) to delete the second sentence of such section,
which prior to its deletion read as follows:
(Should the Bank determine that the payment of (a) a Severance Payment
equal to 299% of the Base Amount, plus (b) the payments provided for
in Section 3 hereof, plus (c) any other payments under this Agreement,
plus (d) any other payments payable to the Executive as a result of
his severance, cause the total of all such payments to constitute a
"parachute payment" under Section 280G of the Internal Revenue Code of
1986, then the Bank shall have the right to reduce the Severance
Payment to the highest amount payable to the Executive which does not
cause the total of all such payments to constitute a "parachute
payment".
Section 9
By amending Section 7 to replace the phrase "Section 6" with "Section 7"
wherever such phrase appears in such section, to add the words "as amended"
after the phrase "Internal Revenue Code of 1986" each time such phrase appears
in such section, and to add the following sentence at the end of Section 7:
For purposes of the preceding sentence, to the extent the payments
made under this Agreement, together with other payments made by SY
Bancorp or the Bank to the Executive, cause the total of all such
payments to result in an "excess parachute payment" under Section
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280G of the Internal Revenue Code of 1986, as amended, an ordering
rule shall apply whereby the payments under this Agreement shall be
deemed the "excess parachute payment"; provided, however, in no event
shall the amount which is deemed to be the "excess parachute payment"
for purposes of the indemnification under this Section 7 exceed the
actual "excess parachute payment" under Section 280G of the Internal
Revenue Code of 1986, as amended, resulting from payments made to the
Executive by SY Bancorp or the Bank.
IN WITNESS WHEREOF, the parties have executed this Amendment Number One as
of the day and year first above written.
STOCK YARDS BANK AND TRUST COMPANY
By: /s/Xxxxx X. Xxxxx
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Title: Vice Chairman
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/s/Xxxxx X. Xxxxxx
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Executive
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