Exhibit 10 (c)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 2nd day of October
1995 by and between MID-AMERICA BANCORP, INC., a Kentucky corporation and
MID-AMERICA BANK OF LOUISVILLE & TRUST COMPANY, a Kentucky Combined Bank
and Trust Company, (together with their successors and assigns permitted
under this Agreement, the "Companies), and X.X. XXXXXXXXX (the
"Executive").
WITNESSETH:
WHEREAS, the Companies desire to employ 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 to accept such
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) "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
a Company, unless the Executive believed in good faith
that such act or nonact was in the best interests of
such Company.
(e) A "Change" shall mean the occurrence of any one of the
following events:
(i) Any "person," as such term is used in Sections 3(a)(9)
and 13(d) of the Securities Exchange Act of 1923,
becomes a "beneficial owner," as such term is used in
Rule l3d-3 promulgated under that Act, of 20% or more
of the Voting Stock of a Company;
(ii) The majority of either Board consists of individuals
other than Incumbent Directors, which term means the
members of the Board on the date of this Agreement;
provided that any person becoming a director or
subsequent to such date whose election or nomination
for election was supported by two-thirds of the
directors who then comprised the Incumbent Directors
shall be considered to be an Incumbent Director;
(iii) A Company adopts any plan of liquidation providing for
the distribution of all or substantially all of its assets;
(iv) All or substantially all of the assets or business of a
Company is disposed of pursuant
to a merger, consolidation or other transaction
(unless the shareholders of such Company
immediately prior to such merger, consolidation or
other transaction beneficially own, directly or
indirectly, in substantially the same proportion as
they owned the Voting Stock of such Company, all
of the Voting Stock or other ownership interests
of the entity or entities, if any, that succeed to
the business of such Company); or
(v) A Company combines with another company and is the
surviving corporation but, immediately after the
combination, the shareholders of such Company
immediately prior to the combination hold, directly or
indirectly, 50% or less of the Voting Stock of the
combined company (there being excluded from the number
of shares held by such shareholders, but not from the
Voting Stock of the combined company, any shares
received by Affiliates of such other company
in exchange for stock of such other company).
(f) "Constructive Termination Without Cause" shall mean a
termination of the Executive's employment at his initiative
as provided in Section 7(c) below following the occurrence,
without the Executive's prior written consent, of one or
more of the following events (except in consequence of a
prior termination):
(i) A reduction in the Executive's then current Base Salary
or the termination
or material reduction of any employee benefit or
perquisite enjoyed by him (other than as part of an
across-the-board reduction applicable to all executive
officers of the Companies);
(ii) The failure to elect or reelect the Executive to any of
the positions described in Section 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
Vice-Chairman of the Boards (or as Chairman of the
Boards and as the Chief Executive Officer of the
Companies when so elected) or any other office to which
he may be elected or appointed;
(iv) The failure to continue the Executive's participation
in any incentive compensation plan unless a plan
providing a substantially similar opportunity is
substituted;
(v) The relocation of a Companies' principal office, or the
Executive's own office location as assigned to him by a
Company, to a location outside of the metropolitan area
of Louisville, Kentucky; or
(vi) The failure of a Company to obtain the assumption in
writing of its obligation to perform this Agreement by
any successor to all or substantially all of the assets
of such Company within 45 days after a merger,
consolidation, sale or similar transaction.
(g) "Disability" shall mean the Executive's inability to
substantially perform his duties and responsibilities under
this Agreement for a period of 180 consecutive days.
(h) "Subsidiary" of a Company shall mean any corporation of
which such Company owns, directly or indirectly, more than
50 % of the Voting Stock.
(i) "Term of Employment" shall mean the period specified in
Section 2 below.
(j) Voting Stock" shall mean capital stock of any class or
classes having general voting
power under ordinary circumstances, in the absence of
contingencies, to elect the director as of a corporation.
2. Term of Employment.
The Companies hereby employ the Executive, and the Executive
hereby accepts such employment, for a five (5) year period commencing
October 3, 1995 and continuing until the termination of his employment in
accordance with the terms of this Agreement.
3. Position, Duties and Responsibilities.
(a) During the term of Employment, the Executive shall be
employed as the Vice Chairman (or as Chairman of the Boards
and Chief Executive Officer of the Companies when so
elected) and be responsible for the general management of
the affairs of the Companies. It is the intention of the
parties that the Executive shall be elected to and serve as
a member of the Boards. The Executive, in carrying out his
duties under this Agreement, shall report to the Boards.
(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' Vice Chairman (or as Chairman of the Boards
and Chief Executive Officer when so elected) or any other
office to which he may be elected or appointed.
(c) Executive agrees that he will, consistent with Bank policy,
refrain during the term of his employment and while
receiving benefits hereunder from investing in any company
that is a customer of the Companies.
4. Base Salary.
The Executive shall be paid an annualized base Salary, payable in
accordance with the regular payroll practices of the Companies, of
$365,000.00. The Base Salary shall be reviewed no less frequently than
annually for increase at the sole discretion of the Board and its
Nominating and Executive Compensation
Committee.
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 Due to Disability. In the event the Executive's
employment is terminated due to his Disability, he shall be
entitled in each case to the greater of the benefits under
the then current Companies disability benefits plan or the
following:
(i) An amount equal to the sum of 50% of Base Salary, at
the annual rate in effect at termination of his
employment, for a period ending with the end of the
month in which he becomes 65, less the amount of any
disability benefits provided to the Executive by the
Companies under any disability plan or social security
disability benefits;
(ii) The balance of any incentive awards earned (but not yet
paid);
(iii) The continued right to exercise any stock option for the
remainder of its term, such option to continue to
become exercisable in accordance with the schedule set
forth in the option;
(iv) Any pension benefit that may become due pursuant to
Section 5 above;
(v) Continued accrual of credited service for the purpose
of the pension benefit provided under Section 5 above
during the period of the Executive's Disability or, if
sooner, until the earlier of the Executive's election
to commence receiving his pension under Section 5 above
or his attainment of age 65;
(vi) Continued participation in medical, dental,
hospitalization and life insurance coverage and in all
other employee plans and programs in which he was
participating on the date of termination of his
employment due to Disability until he attains age 65;
and
(vii) Other or additional benefits in accordance with
applicable plans and programs of the Companies.
If the Executive is precluded from continuing his participation
in any employee benefit plan or program a provided in clause (vi) above, he
shall be provided the after-tax economic equivalent of the benefits
provided under the plan or program in which he is unable to participate.
The economic equivalent of any benefit
foregone shall be deemed to be the lowest cost that would be incurred by
the Executive in obtaining such benefit himself on an individual basis.
In no event shall a termination of the Executive's employment for
Disability occur unless the Party terminating his employment gives written
notice to the other Party in accordance with Section 15 below.
(b) Termination by the Company for Cause.
(i) A termination for Cause shall not take effect unless
the provisions of this paragraph (i) are complied with.
The Executive shall be given written notice by the
Board of the intention to terminate him for Cause, such
notice (A) to state in detail the particular act or
acts or failure or failures to act that constitute the
grounds on which the proposed termination for Cause is
based and (B) to be given within six months of the
Board learning of such act or acts or failure to act.
The Executive shall have 10 days after the date that
such written notice has been given to the Executive in
which to request a hearing before the Board. Such
hearing shall be held within 15 days of such notice to
the Executive, provided he requests such hearing.
(ii) In the event the Companies terminate the Executive's
employment for Cause, he shall be entitled to:
(A) The Base Salary through the date of the
termination of his employment for
Cause;
(B) Any incentive awards earned (but not yet paid);
(C) Any pension benefit that may become due pursuant
to Section 5 above, determined as of the date of
such termination;
(D) Other or additional benefit in accordance with
applicable plans or programs of the Companies to
the date of termination.
(c) Termination Without Cause or Constructive Termination
Without Cause. In the event the Executive's employment is
terminated without Cause, other than due to Disability or
death, or in the event there is a Constructive Termination
Without Cause, the Executive shall be entitled to:
(i) The Base Salary through the date of termination of the
Executive's employment;
(ii) The Base Salary, at the annualized rate in effect on
the date of termination
of the Executive's employment (or in the event a
reduction in Base Salary is the basis for a
Constructive Termination Without Cause, then the Base
Salary in effect immediately prior to such reduction),
for a period of 36 months following such termination;
provided that at the Executive's option the Companies
shall pay him the present value of such salary
continuation payments in a lump sum (using as the
discount rate the Applicable Federal Rate for short
term Treasury obligations as published by the Internal
Revenue Service for the month in which such termination
occurs);
(iii) The balance of
any incentive awards earned (but not yet paid);
(iv) The right to exercise any stock option in full, whether
or not such right is
exercisable pursuant to the terms- of the grant.
(v) Any pension benefit that may become due pursuant to
Section 5 above;
(vi) Continued accrual of credited service for the purpose
of the pension benefit provided under Section 5 above
for the period of 36 months or his attainment of age
65, whichever shall first occur;
(vii) Continued
participation in all medical, dental, hospitalization
and life insurance coverage and in other employee
benefit plans or programs in which he was participating
on the date of the termination of his employment until
the earlier of:
(A) The end of the period during which he is receiving
salary continuation payments (or in respect of
which a lump-sum severance payment is made);
(B) The date, or dates, he receives equivalent
coverage and benefits under the plans and programs
of a subsequent employer (such coverages and
benefits to be determined on a
coverage-by-coverage, or benefit-by-benefit,
basis); provided that (x) if the Executive is
precluded from continuing his participation in any
employee benefit plan or program as provided in
this clause (ix) of this Section 7(c), he shall be
provided with the after-tax economic equivalent of
the benefit provided under the plan or program in
which he is unable to participate for the period
specified in this -clause (ix) of this Section
7(c), (y) the economic equivalent of any benefit
foregone shall be deemed to be the lowest cost
that would be incurred by the Executive in
obtaining such benefit himself on an individual
basis, and (z) payment of such after-tax economic
equivalent shall be made quarterly in advance; and
(viii) Other or
additional benefits in accordance with applicable plans
and programs of the Companies to the date of
termination.
(d) Termination of Employment Following a Change in Control. If
following a change in control, the Executive's employment is
terminated without Cause or there is a Constructive
Termination Without Cause, the Executive shall be entitled
to the payments and benefits provided in Section 7(c),
provided that the salary continuation payments shall be paid
in a lump sum without any discount. Also, immediately
following a Change in Control, all amounts, entitlements or
benefits in which he is not yet vested shall become fully
vested except to the extent such vesting would be
inconsistent with the terms of the relevant plan.
(e) Voluntary Termination. In the event of a termination of
employment by the Executive on his own initiative other than
a termination due to death or Disability or a Constructive
Termination without Cause, the Executive shall have the same
entitlements as provided in Section 7(b)(ii) for a
Termination for Cause. A voluntary termination under this
Section 7(e) shall be effective upon 30 days prior notice to
a Company and shall not be deemed a breach of this
Agreement.
(f) Limitation Following a Change in Control. In the event that
the termination of the Executive's employment is for one of
the reasons set forth in Section 7(e) above and the
aggregate of all payments or benefits made or provided to
the Executive under Section 7(d) above and under all other
plans and programs of the Companies (the "Aggregate
Payment") is determined to constitute a Parachute Payment,
as such term is defined in Section 280G(b)(2) of the
Internal Revenue Code of 1986, as amended (the "Code"),
notwithstanding any other provision of this Agreement to the
contrary the aggregate amount of payments or benefits paid
by the Companies to the Executive pursuant to this
Agreement, the amount to be paid to the Executive and the
time of payment pursuant to this Section 7(f) shall be
adjusted so as to make such payments fully deductible by a
Company. If the parties are unable to agree upon an Auditor
to calculate such an adjustment, then the Executive and
Companies shall each select one accounting firm and those
two firms shall jointly select the accounting firm to serve
as the Auditor.
(g) No Mitigation; No Offset. In the event of any termination of
employment under this Section 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. Non-Competition.
The Executive agrees that he will not from the date hereof and
continuing while he is receiving
any salary or other benefits from the Companies pursuant to the terms
hereof, directly or indirectly, own, manage, operate, control or
participate in the ownership, management, operation or control of any
business in the Louisville metropolitan area which is in competition with
any business being conducted by the Companies.
Executive acknowledges that his breach of the non-competition
agreement contained in this paragraph 8 will result in irreparable injury
to the Companies and their affiliates, and that the Companies and their
affiliates' remedy at law for such a breach will be inadequate.
Accordingly, the Executive agrees and consents that the Companies or any of
their affiliates, in addition to all other remedies available to them at
law and in equity, shall be entitled to seek both preliminary and permanent
injunctions to prevent and/or halt a breach or threatened breach by the
Executive of the covenant contained in this paragraph 8. If any provision
of this paragraph 8 is determined by a court of competent jurisdiction to
be invalid in whole or in part, it shall be
deemed to have been amended, whether as to time, area covered, or
otherwise, as and to the extent required
for its validity under applicable law and as so amended shall be
enforceable.
9. Indemnification.
(a) The Companies agree that if the Executive is made a party,
or is threatened to be made a party, to any action, suit or
proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that
he is or was a director, officer or employee of the
Companies or is or was serving at the request of the
Companies as a director, officer, member, employee or agent
of another corporation, partnership, joint venture, trust or
other enterprise, including service with respect to employee
benefit plans, whether or not the basis of such Proceeding
is the Executive's alleged action in an official capacity
while serving as a director, officer, member, employee or
agent, the Executive shall be indemnified and held harmless
by the Companies to the fullest extent permitted or
authorized by the Companies' certificates of incorporation
or bylaws or, if greater, by the laws of the State of
Kentucky, against all cost, expense, liability and loss
(including, without limitation, reasonable attorney's fees,
judgments, fines, ERISA, excise taxes or penalties and
amounts paid or to be paid in settlement) reasonably
incurred or suffered by the Executive in connection
therewith, and such indemnification shall continue as to the
Executive even if he has ceased to be a director, member,
employee or agent of the Companies or other entity and shall
inure to the benefit of the Executive's heirs, executors and
administrators. The Companies shall advance to the Executive
all reasonable costs and expenses incurred by him in
connection with a Proceeding within 20 days after receipt by
a Company of a written request for such advance. Such
request shall include an undertaking by the Executive to
repay the amount of such advance if it shall ultimately be
determined that he is not entitled to be indemnified against
such costs and expenses.
(b) Neither the failure of a Company (including its board of
directors, independent legal counsel or stockholders) to
have made a determination prior to the commencement of any
proceeding concerning payment of amounts claimed by the
Executive under Section 8(a) that indemnification of the
Executive is proper because he has met the applicable
standard of conduct, nor a determination by a Company
(including its board of directors, independent legal counsel
or stockholders) that the Executive has not met such
applicable
standard of conduct, shall create a presumption that the
Executive has not met the applicable standard of conduct.
(c) The Companies agree to continue and maintain a directors'
and officers' liability insurance policy covering the
Executive to the extent either Company provides such
coverage for its other executive officers.
10. Representation.
The Companies represent and warrant that they are fully
authorized and empowered to enter into this Agreement and that the
performance of their obligations under this Agreement will not violate any
agreement between it and any other person, form or organization.
11. Entire Agreement.
This Agreement contains the entire understanding and agreement
between the Parties concerning the subject matter hereof and supersedes all
prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the Parties with respect
thereto.
12. Amendment or Waiver.
No provision in this Agreement may be amended unless such
amendment is agreed to in writing and signed by the Executive and an
authorized officer of the Companies. No waiver by either Party of any
breach by the other Party of any condition or provision contained in this
Agreement to be performed by such other Party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same or any prior or
subsequent time. Any waiver must be in writing and signed by the Executive
or an authorized officer of the
Companies, as the case may be.
13. Severability.
In the event that any provision or portion of this Agreement
shall be determined to be invalid or
unenforceable for any reason, in whole or in part, the remaining provisions
of this Agreement shall be unaffected thereby and shall remain in full
force and effect to the fullest extent permitted by law.
14. Survivorship.
The respective rights and obligations of the Parties hereunder
shall survive any termination of the
Executive's employment to the extent necessary to the intended preservation
of such rights and obligations.
15. Resolution of Disputes.
Any disputes arising under or in connection with this Agreement
shall, at the election of the Executive or the Companies, be resolved by
binding arbitration, to be held in Kentucky in accordance with the rules
and procedures of the American Arbitration Association. Judgment upon the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof Costs of the arbitration or litigation, including,
without limitation, attorneys' fees of both Parties, shall be borne by the
Companies, provided that if
the arbitrator(s) determine that the claims or defenses of the Executive
were without any reasonable basis,
each Party shall bear his or its own costs.
16. Notices.
Any notice given to a party shall be in writing and shall be
deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed
to the Party concerned at the address indicated below or to such changed
address as such Party may
subsequently give such notice of:
If to the Companies: Mid-America Bancorp, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxx
If to the Executive: X.X. Xxxxxxxxx
000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
17. Headings.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning
or construction of any provision of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first written above.
MID-AMERICA BANCORP, INC.
By: __/s/ Xxxxxxx X. Xxxxx
Title: Chairman
MID-AMERICA BANK OF LOUISVILLE
& TRUST COMPANY
By: __/s/ Xxxxxxx X. Xxxxx
Title: Chairman
__/s/ X. X. Xxxxxxxxx
Name: X. X. Xxxxxxxxx
