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").
W I T N E S S E T H:
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 13d-3
promulgated under that Act, of 20% or more of the Voting Stock of
a Company;
(ii) The majority of either Board consists of
individuals other than Incumbent Directors, which term means the
members of the Board on the date of this Agreement; provided that
any person becoming a director 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 directors 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 2, 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 of official capacity while sewing 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: 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 of the Board
MID-AMERICA BANK OF LOUISVILLE &
TRUST COMPANY
By: /s/Xxxxxxx X. Xxxxx
Title: Chairman of the Board
/s/ X. X. Xxxxxxxxx
Name: X. X. Xxxxxxxxx
