SENIOR EXECUTIVE SEVERANCE AGREEMENT
This Agreement is made and entered into between Stock Yards Bank and Trust
Company, a Kentucky banking corporation with its principal office located in
Louisville, Kentucky (the "Bank") and XXXXX X. XXXXXX, and with an address at
0000 Xxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (the "Executive").
W I T N E S S E T H:
The Bank is a wholly owned subsidiary of S.Y. Bancorp, Inc., a Kentucky
corporation and bank holding company ("SY Bancorp").
SY Bancorp, as the sole shareholder of the Bank, considers the
establishment and maintenance of a sound and vital management team to be
essential to protecting and enhancing the best interests of the Bank, SY
Bancorp, and SY Bancorp's shareholders.
SY Bancorp and the Bank recognize that, as is the case with many publicly
held bank holding companies, the possibility exists that an unsolicited tender
offer or takeover bid and a consequent change of control of SY Bancorp may
occur, and thus, that as a practical matter, a change of control of the Bank,
may occur, and that such a possibility is unsettling and distracting to key
executives of the Bank.
SY Bancorp and the Bank have concluded that it is in the best interests of
SY Bancorp, its shareholders and the Bank to take reasonable steps to help
assure certain key executives of the Bank that, notwithstanding an unsolicited
tender offer or takeover bid, or an actual change of control, they will be
treated fairly and with concern for their welfare.
SY Bancorp and the Bank have also concluded that it is important that,
should SY Bancorp receive takeover or acquisition proposals from third parties,
that it be able to call upon the key executives of the Bank for their candid
assessment and advice concerning whether such proposals are in the best
interests of SY Bancorp, its shareholders and the Bank, free of the influences
caused by the uncertainties and risks of their own personal employment
situations.
For the foregoing reasons the Board of Directors of SY Bancorp and of the
Bank have approved the Bank's entering into severance agreements with key
executives of the Bank pursuant to the Bank's Senior Executive Severance Plan
(the "Plan").
The Executive is a key executive of the Bank and has been selected by the
Bank's board of directors and by the board of directors of the Bank's sole
shareholder, SY Bancorp, as a key executive to participate in and under the
Plan.
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NOW THEREFORE, in consideration of these premises and for other good and
valuable consideration, the Bank and the Executive agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
"TERM" shall mean the period commencing on the date first above written and
ending on the last day of the month in which Executive attains the age of
sixty-five (65) years.
A "CHANGE OF CONTROL" shall be deemed to have taken place if: (i) a third
'person" as defined in Sections 13(d) and 14(d) (2) of the Securities Exchange
Act of 1934, including but not limited to a "group" as defined in Section 13(d)
(3) of such Act, becomes the beneficial owner, directly or indirectly, of
securities of SY Bancorp or the Bank representing forty percent (40%) or more of
the combined voting power of SY Bancorp's or the Bank's then outstanding
securities; or (ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board of Directors of SY Bancorp
cease for any reason to constitute at least a majority of such board of
directors, unless the election, or the nomination or election by SY Bancorp's
shareholders, of each new director was approved by a vote of at least two-thirds
of the directors then still in office who were directors at the beginning of
such period.
"CAUSE" for termination shall exist if the Executive (i) willfully and
continually fails to substantially perform his duties (other than as a result of
incapacity or temporary or Permanent Disability) for the Bank as described in
the most recent written description of such duties maintained by the Bank's
personnel department and communicated to the Executive after a written demand
for substantial performance is delivered to the Executive by the Bank's board of
directors specifically identifying the manner in which the board of directors
believes that the Executive has not substantially performed his duties; or (ii)
engages in gross misconduct constituting a violation of law or breach of
fiduciary duty which misconduct is materially and demonstrably injurious to the
Bank.
"CUSTOMER" shall mean any firm, individual, corporation or entity which
used the facilities, products or services of the Bank during the twelve (12)
month period immediately preceding the voluntary or involuntary termination of
Executive's employment with the Bank; but Customer shall not include any firm,
individual, corporation or entity with which Executive had a business
relationship, either for Executive or for Executive's previous employer, prior
to the date of Executive's employment with the Bank and which Executive
specifically identifies in writing to the Bank within thirty (30) days following
the date of Executive's employment with the Bank, except that following
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eighteen (18) months employment with the Bank, any such firm, individual,
corporation or entity so identified by Executive shall be deemed to have become
a Customer of the Bank if they otherwise meet the definition of "Customer" as
set forth above.
"FORCED RESIGNATION" means a resignation by the Executive following a
Change in Control and the occurrence of any of the following:
(i) without his express written consent, the Executive is
assigned any duties inconsistent with the positions, duties, responsibilities
and status he held with the Bank immediately prior to the Change in Control, or
a change occurs in the Executive's reporting responsibilities, titles or offices
as in effect immediately prior to the Change in Control, or the Executive is
removed from, or there is a failure to re-elect the Executive to, any of such
positions, except in connection with the termination of the Executive's
employment for Cause, or Retirement, or as a result of his death or Permanent
Disability;
(ii) a reduction by the Bank in the Executive's salary as in
effect on the date hereof or as the same may have been increased from time to
time prior to the Change in Control;
(iii) the Bank's requiring the Executive to work from an office
anywhere other than at the Bank's principal executive offices, except for
required travel on the Bank's business to an extent substantially consistent
with his present business travel obligations or such obligations as are incident
to a promotion;
(iv) the failure by the Bank to continue in effect any deferred
benefit or compensation plan, pension plan, profit sharing plan, life insurance
plan, major medical or hospitalization plan or disability plan in which the
Executive is participating at the time of the Change in Control (or plans
providing substantially similar benefits), or the taking of any action by the
Bank which would adversely affect the Executive's participation in, or
materially reduce his benefits under, any of such plans or deprive him of any
material fringe benefits; or
(v) the failure by the Bank to provide the Executive with the
number of paid vacation, illness, and personal leave days to which he is
entitled at the time of a Change in Control in accordance with the Bank's normal
personnel policy applicable to all employees.
"RETIREMENT" shall mean the Executive's retirement in accordance with the
Bank's retirement policy applicable to all employees classified as "senior
executives".
"BASE AMOUNT" shall have the meaning given to such term in Section
280G(b)(3) of the Internal Revenue Code of 1986.
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"PERMANENT DISABILITY" means any mental or physical condition or impairment
which prevents the Executive from substantially performing his duties for a
period of more than ninety (90) consecutive days.
2. SEVERANCE PAYMENT UPON TERMINATION FOLLOWING CHANGE IN CONTROL. During
the Term, in the event of (i) the Executive's Forced Resignation following a
Change in Control or (ii) the termination (whether voluntary or involuntary) of
the Executive's employment with the Bank following a Change in Control 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 or resignation, 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. On the effective date
of such termination or resignation, the Bank shall also pay to the Executive a
severance payment equal to 299 percent of the Executive's Base Amount (the
"Severance Payment"); provided, however, such Severance Payment shall only be
payable in the event of voluntary termination or resignation, occurring within
thirty-six (36) months of a Change in Control. In the event such voluntary
termination or resignation occurs less than two (2) years following a Change in
Control, the Executive shall receive the full Severance Payment. In the event
such voluntary termination or resignation occurs more than two (2) years but up
to three (3) years following a Change in control, the Executive shall receive
only ___ of the Severance Payment. Thereafter, Severance Payment shall be made
hereunder only following Forced Resignation or involuntary termination other
than for cause. The Severance Payment 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
the 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.
3. OTHER PAYMENTS AND BENEFITS. Upon termination of the Executive's
employment, the Executive shall have the following rights with respect to
certain fringe benefits provided by the Bank:
(a) ACCRUED VACATION AND SICK PAY. 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 all accrued and unpaid vacation and sick
days.
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(b) INSURANCE. The Executive shall be entitled to continue, at his
sole cost and expense, his participation in all life, disability, major medical
and hospitalization insurance plans maintained by the Bank for his benefit or,
in the event that such continuation is not permitted under the terms of such
plans, the Bank shall, at the Executive's request, arrange for comparable
individual plans for the benefit of, but at the sole expense of, the Executive,
or shall provide the Executive with such other and greater rights as are
required by applicable law.
(c) PROFIT SHARING AND PENSION PLANS. The Executive's participation in
all profit sharing, pension, deferred benefit and retirement plans shall
continue through the last day of the Executive's employment, with any
terminating distributions and/or vested rights under such plans being governed
by the terms of such plans.
(d) LOAN PROGRAM. All loans to the Executive under the Bank's loan
program that are outstanding as of the time the Executive's employment ceases
hereunder shall be treated in the same manner as loans are treated upon
Retirement under the Bank's personnel policies in effect on the date hereof.
(e) EDUCATION PROGRAM. The Executive shall be entitled to complete, at
the Bank's expense, all courses in which the Executive is enrolled under the
Bank's Education Program on the date of his termination.
4. CALCULATION METHOD; ADJUSTMENTS TO SEVERANCE PAYMENT.
(a) MISCELLANEOUS REDUCTION. The Bank shall have the responsibility
for calculating the Base Amount which shall serve as the basis for calculating
the Severance Payments and shall provide such calculations and the support
therefor to the Executive on the date of his termination, Voluntary Resignation
or Forced Resignation. (Should the Bank determine that the payment of (a) a
Severance Payment equal to 299 percent 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." The Executive shall have a right to cause an
audit to be made of the Bank's calculation of the Base Amount, the Severance
Payment and the other amounts payable hereunder by a certified public
accountant, benefits consultant or similar expert chosen by the Executive. If
such audit reveals that the calculations performed by the Bank were in error or
have resulted in the payment to the Executive of an amount less than that to
which he is entitled hereunder, the Bank shall immediately
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rectify such underpayment and, in addition, reimburse the Executive for the cost
of performing such audit.
(b) TRANSITION TO RETIREMENT. The Bank and Executive each acknowledge
and agree that the purpose of this Agreement is not to provide unjust enrichment
to Executive, but rather to provide funds or employment security, as the case
may be, during any potential transition as a result of Change of Control.
Accordingly, the parties hereto agree that as Executive approaches retirement
age, the need for providing such support in the event of a Change of Control
decreases proportionately, in part due to retirement and related benefits and
their imminent availability to Executive. Based upon such rationale, the
Severance Payment payable to Executive shall decrease as follows:
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AGE OF EXECUTIVE AT DATE PERCENTAGE OF EXECUTIVE'S
OF SEVERANCE PAYMENT BASE AMOUNT PAYABLE
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58 250%
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59 225%
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60 200%
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61 175%
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62 150%
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63 125%
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64 100%
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65 0%
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5. BANK REGULATORY PROVISION. Notwithstanding any other provision of this
Agreement, the parties agree as follows:
(a) The Bank's board of directors may terminate the Executive's employment
at any time, but any termination by the Bank's board of directors other than
termination for Cause, shall not prejudice the Executive's right to compensation
or other benefits under the Agreement. The Executive shall have no right to
receive compensation or other benefits for any period after termination for
Cause.
(b) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
1818(e)(3) and (g)(1)) the Bank's obligations under the Agreement shall be
suspended as of the date of service unless stayed by appropriate proceedings. If
the charges in the notice are dismissed, the Bank may, in its discretion, (i)
pay the Executive all or part of the compensation
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withheld while its contract obligations were suspended or (ii) reinstate (in
whole or in part) any of its obligations which were suspended.
(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C. 1818(e)(4) and
(g)(1)), all obligations of the Bank under the Agreement shall terminate as of
the effective date of the order, but vested rights of the contracting parties
shall not be affected.
(d) If the Bank is in default (as defined in section 3(x)(1) of the Federal
Deposit Insurance Act), all obligations under the Agreement shall terminate as
of the date of default, but this paragraph 5(d) shall not affect any vested
rights of the contracting parties.
(e) All obligations under the Agreement shall be terminated, except to the
extent determined that continuation of the contract is necessary for the
continued operation of the Bank:
(i) by the Director or his or her designee, at the time the Federal
Deposit Insurance Corporation enters into an agreement to provide
assistance to or on behalf of the Bank under the authority
contained in section 13(c) of the Federal Deposit Insurance Act;
or
(ii) by the Director or his or her designee, at the time the Director
or his or her designee approves a supervisory merger to resolve
problems related to operation of the Bank or when the Bank is
determined by the Director to be in an unsafe or unsound
condition.
6. FEES AND COSTS. The Bank agrees to advance to Executive all legal
fees, costs, and expenses arising out of or in any way related to or incurred by
the Executive in connection with enforcing any right or benefit provided in this
Agreement, or in interpreting this Agreement, or in contesting or disputing any
termination of the Executive's employment hereunder purportedly for Cause or
other action taken by the Bank hereunder;
7. INDEMNITY. The Bank agrees to and does hereby indemnify and hold
Executive harmless from and against any and all excise taxes payable by the
Executive pursuant to section 4999 of the Internal Revenue Code of 1986 as a
result of any payment hereunder being deemed an "excess parachute payment" under
Section 280(G) of the Internal Revenue Code of 1986, and all further excise
taxes and federal and state income taxes (together with interest and penalty, if
any) payable with respect
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to, or as a result of the operation of, this indemnification provision, it being
the intent of this Section 6 to "gross up" the amount paid to the Executive so
that he is in the same economic position he would have been but for certain
payments hereunder being deemed excess parachute payments.
8. MITIGATION. The Executive shall not be required to mitigate the amount
of any payment provided for in its Agreement, whether by seeking other
employment or otherwise, nor shall the amount of any payment provided for herein
be reduced by any compensation earned or received by the Executive as a result
of his employment by another employer following his termination hereunder.
9. COVENANT NOT TO COMPETE. Notwithstanding the terms and provisions of
any other "Officer Non-Solicitation and Confidentiality Agreement" by and
between the Bank and the Executive, which may provide for negation of covenants
not to compete from the Executive to the Bank in the event of a Change in
Control as defined herein, in the event of the receipt by the Executive of
Severance Payments hereunder, the Executive hereby covenants to the Bank, for a
period of eighteen (18) months following the receipt of the Severance Payment as
contemplated herein, Executive will not, directly or indirectly, either for the
Executive or for any other person, entity or company, (i) solicit Customers, or
business patronage, of the Bank for the purpose of providing services which are
identical or similar to services then provided by the Bank either within the
Commonwealth of
Kentucky, or within a radius of fifty (50) miles from the Bank's
offices in Louisville,
Kentucky, (ii) divert or attempt to divert from the Bank
any Customer of the Bank, or (iii) solicit for employment any employee of the
Bank. It is understood that breach of this provision by Executive will result in
irreparable injury to the Bank and, by reason thereof, Executive consents and
agrees that, for any violation of this provision, the rights of the Bank under
the terms of this Agreement may be specifically enforced with injunctive relief
and Executive hereby waives any claim or defense that the Bank has an adequate
remedy at law. This remedy of injunctive relief shall be in addition to the
right of the Bank to pursue any other remedies at law or in equity available to
it, including the recovery of damages and reasonable attorney fees.
10. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and if sent by
registered or certified mail to the Executive at the last address he has filed
in writing with the Bank or, in the case of the Bank, at its principal executive
offices.
11. GOVERNING LAW. The provisions of this Agreement shall be construed in
accordance with the laws of the Commonwealth of
Kentucky.
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12. AMENDMENT. This Agreement may be amended or cancelled by mutual
agreement of the parties in writing without the consent of any other person and,
so long as the Executive lives, no person, other than the parties hereto, shall
have any rights under or interest in this Agreement or the subject matter
hereof.
13. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the Bank and its successors and assigns; including but not
limited to any successor to the Bank, direct or indirect, resulting from
purchase, merger, consolidation or otherwise. This Agreement shall also be
binding upon the Executive and shall inure to the benefit of the Executive, his
personal or legal representatives, successors, heirs and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement 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
December 31, 1994
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