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Exhibit 10.3
STOCK YARDS BANK & TRUST COMPANY
DIRECTOR NONQUALIFIED
DEFERRED COMPENSATION PLAN
(as Amended and Restated in 2009)
Section 1--Purpose
Stock Yards Bank and Trust Company (the
"Company") adopts the Plan set forth herein as a 2009 amendment and
restatement of a plan previously in effect, to provide a means by
which Directors of the Company and its parent, SYB Bancorp, Inc.
("Directors") may elect to defer receipt and income taxation of
current fees for service as Directors.
The Plan is intended to be a nonqualified
deferred compensation plan that complies with the provisions of
Section 409A of the Internal Revenue Code (the "Code").
In light of regulations and other guidance
recently issued by the Internal Revenue Service under Code Section
409A, the Company now amends and restates the Plan in its entirety,
to bring the Plan into compliance with such guidance and to make
minor clarifying changes, effective as of January 1, 2009 except as
otherwise provided herein
Account balances accumulated prior to December 31, 2004, along
with all interest credited thereto, were separately accounted for
under this Plan. Effective upon the adoption of a 2006
Amended and Restated version of this Plan, the provisions set forth
herein control all Account balances regardless of when such funds
were accumulated.
Section 2--Definitions
As used in the Plan, including this Section 2,
references to one gender shall include the other and, unless
otherwise indicated by the context:
2.1
"Active Participant" means a Participant in the Plan, other
than a Participant who has had a Termination of Service, or a
Participant whom the Committee has determined is no longer be
eligible for the Plan.
2.2
"Annual Enrollment Period" shall mean the period during which a
Director must enroll to make Deferrals which, with respect to any
Plan Year, shall be the period prior to the first day of the Plan
Year, or, in the case of those who are elected Directors for the
first time after the first day of a Plan Year, the period ending 30
days after their election.
2.3
"Beneficiary" means the person, persons, entity or entities
designated or determined pursuant to the provisions of Section 13
of the Plan.
2.4
"Board" means the Board of Directors of Stock Yards Bank and
Trust Company.
2.5
"Code" means the Internal Revenue Code of 1986, as amended.
2.6
"Committee" means a committee appointed by the Board to serve
hereunder or, if not specifically appointed, the Executive
Compensation Committee of the Board of the Company.
2.7
"Crediting Date" means the date for crediting the amount of any
Participant Deferral Credits to the Account of a Participant.
Any such amounts may be credited to the Account of a Participant on
any day that securities are traded on a national securities
exchange.
2.8
"Deferral Credits" means the amounts credited as soon as
practicable after each fee payment date to the Participant's
Account by the Company pursuant to the provisions of Section 4.1
based on a Participant's Election Form.
2.9
"Deferred Compensation Account" or simply "Account"
means the total account maintained with respect to each
Participant under the Plan, including any amounts designated as an
In-Service Account. The Account shall be credited with
Participant Deferral Credits and credited or debited for deemed
investment gains or losses, and adjusted for payments in accordance
with the rules and elections in effect under Section 8.
2.10 "Effective
Date" shall be March 1, 2001, the date the Plan was first
effective. This amendment and restatement of the Plan shall
be effective January 1, 2005, except as otherwise provided
herein.
2.11
"Election Form" shall mean the form or electronic enrollment
process established from time to time by the Committee that a
Participant uses to make a Deferral election under the Plan, and to
designate when first eligible hereunder (or, pursuant to a 2006
transition rule set forth in Section 6.4) a payment form election
as among the options available for Account payments or to designate
in advance of any Plan Year that some or all of the Deferral
Credits for that Plan Year should be allocated to an In-Service
Account.
2.12 "Company"
means Stock Yards Bank and Trust Company, and any other Company
that is a member of controlled group of business or businesses
under common control (within the meaning of Section 414(c) of the
Code) with Stock Yards Bank and Trust Company, which adopts this
Plan for the benefit of its Directors. In such event, Stock
Yards Bank and Trust Company shall be the only entity authorized or
required to amend the Plan or administer it, and the other adopting
companies shall be responsible solely for payments to its Directors
who participate hereunder.
2.13 "In-Service
Account" means a separate sub-account of the Deferred
Compensation Account to be kept for each Participant who has
elected to designate all or a portion of one or more Plan Years'
Deferral Credits to be withdrawn at a specified date as described
in Section 5.3. The In-Service Account shall be adjusted in
the same manner and at the same time as the Deferred Compensation
Account under Section 8 and in accordance with the rules and
elections in effect under Section 8.
2.14
"Participant" means a Director who has entered the Plan or who
has an Account under the Plan.
2.15 "Plan" means
The Stock Yards Director Deferred Compensation Plan, as herein set
out or as duly amended hereafter.
2.16 "Plan Year"
means the twelve-month period ending on the last day of
December.
2.17 "Specified
Participant" means, effective April 1 of each year, any
Participant who meets the ownership, officer and compensation
thresholds of Section 416(i)(1)(A)(i), (ii) or (iii) of the Code
(applied in accordance with the regulations thereunder and without
regard to Section 416(i)(5) of the Code) with respect to the
Company at any time during the twelve month period ending on
December 31 of each year (the "identification date"). If the
Participant meets these thresholds as of any identification date,
the person is treated as a Specified Participant for the
twelve-month period beginning on April 1 following the
identification date. If the definition of Specified Employee
is changed in any successor guidance to Treas. Reg. Section
1.409A-1(i), that changed definition shall control hereunder.
2.18 "Spouse"
means, except as otherwise provided in the Plan, a person who is
the legally married spouse of a Participant. " Surviving
Spouse " means the person to whom a Participant was legally
married at the Participant's death and who survives the
Participant.
2.19 "Trust"
means the trust fund established pursuant to Section 10.2, if
adopted by the Company.
2.20 "Trustee"
means the trustee, if any, named in the agreement establishing the
Trust and such successor or additional trustee as may be named
pursuant to the terms of the agreement establishing the Trust.
2.21
"Termination of Service" shall mean the date the Company and
the Participant reasonably anticipate that (i) the Participant will
not perform any further services for the Company or any other
entity considered a single employer with the Company under Section
414(b) or (c) of the Code (inserting in lieu of 80% each time it is
used thereunder with 50%) (together referred to herein as the
"Controlled Group"), or (ii) the level of bona fide services
performed after that date (as an employee, director or independent
contractor) will permanently decrease to less than 20% of the
average level of bona fide services performed over the previous 36
months (or if shorter over the duration of service). The
Participant will not be treated as having a Termination of Service
while on military leave, sick leave or other bona fide leave of
absence if the leave does not exceed six months or, if longer, the
period during which the Participant has a reemployment right with
the corporation by statute or contract. If a bona fide leave
of absence extends beyond six months, a Termination of Service will
be deemed to occur on the first day after the end of such six month
period, or on the day after the Participant's statutory or
contractual reemployment right lapses, if later. The
Committee will determine whether a Termination of Service has
occurred based on all relevant facts and circumstances, in
accordance with Treasury Regulation Section 1.409A-1(h).
2.22 "Unforeseeable
Emergency" means a severe financial hardship to the Participant
arising as a result of events beyond the control of the Participant
and resulting from (i) a sudden or unexpected illness or accident
of the Participant, the Participant's Spouse or dependent (as
defined in Section 152(a) of the Code), (ii) loss of the
Participant's property due to casualty, or (iii) other similar
extraordinary and unforeseeable circumstances, all as determined in
the sole discretion of the Committee in accordance with the Code.
"
Section 3--Participation
All Directors now serving or hereafter elected
to such office by the Company are eligible to participate in the
Plan.
Section 4--Credits to Deferred Compensation
Account
4.1
Deferral Credits. Each Active Participant may elect, by
delivering an Election Form during the Annual Enrollment Period, to
defer the receipt of his Director fees or other compensation for
services by a dollar amount or any whole percentage of up to
100%. The amount of the Participant Deferral shall be
credited by the Company to the Deferred Compensation Account (or,
if so designated on the Election Form, In-Service Account)
maintained for the Participant pursuant to Section 5.3. The
Participant's Election Form shall become effective with respect to
such Participant as of the first day of January following the date
such form is received by the Committee (or, with respect to a
Participant who is elected a Director and becomes eligible mid-Plan
Year, at the first fee payment beginning after the Annual
Enrollment Period has expired), and shall be irrevocable as of the
end of the Annual Enrollment Period. The election of a
Participant shall continue in effect for subsequent years until
modified by the Participant as permitted in this Section 4.1, or
until the earlier of the date the Participant incurs a Termination
of Service or the first day of the Plan Year after the Participant
ceases to be an Active Participant under the Plan. Fees
payable after the last day of the Plan Year solely for services
provided during the final fee payment period containing December
31, is treated for purposes of this Section 4.1 as a fee for
services performed in the subsequent taxable year, and the
subsequent Plan Year's Election Form, if any, shall be applied
thereto.
Section 5--Distribution Events and
Forms
5.1
Termination of Service. If the Participant terminates
service with the Company, the vested balance in the Account shall
be paid to the Participant by the Company in a lump sum or in
annual installments over no more than 10 years, as elected by the
Participant at the later of (i) entry into this Plan, or (ii)
before December 31, 2006, in accordance with Section 6.4.
Distribution shall begin or be made 60 days after Termination of
Service, except that, no distribution shall be made earlier than
six months after the Termination of Service with respect to a
Specified Participant. Any payments to which a Specified
Participant would be entitled during the first six months following
Termination of Service shall be accumulated and paid on the first
day of the seventh month following the date of Termination of
Service.
5.2
Death. If the Participant dies before incurring a
Termination of Service, 60 days following that event the Company
shall pay (or begin to pay) a benefit to the Participant's
Beneficiary in either a lump sum, or in annual installments over no
more than 10 years, as elected by the Participant at the later of
(i) entry into this Plan, or (ii) before December 31, 2006, in
accordance with Section 6.4 hereof. If a Participant dies
following his Termination of Service, and before all payments under
the Plan have been made, the vested balance remaining in the
Account shall continue to be paid by the Company to the
Participant's Beneficiary in the same time and manner in effect
prior to his death.
5.3
In-Service Distributions. A Participant may designate in
the Election Form during any Annual Enrollment Period to have a
specified amount or percentage of the Participant's future Deferral
Credit added to an In-Service Account for in-service
distribution. The time and manner of the in-service
distribution shall be specified by the Participant in the Election
Form, as between a lump sum at a designated date or annual
installments over not more than 6 years beginning at a designated
date, provided that, the date so designated is no less than 3 years
later than the Deferral Plan Year. Notwithstanding the
foregoing, if a Participant incurs a Termination of Service or dies
prior to the date on which the entire balance in the In-Service
Account has been distributed, then the balance in the In-Service
Account shall be distributed to the Participant in the same manner
and at the same time as the remaining balance in the Account is
distributed under Section 5.1 or 5.2.
5.4
Unforeseeable Emergency. If a Participant experiences an
Unforeseeable Financial Emergency, the Participant may petition the
Committee to receive a partial or full distribution of the
Participant's Account from the Plan. The petition shall be
accompanied by such documentation in support of the existence of an
Unforeseeable Financial Emergency as the Committee shall
require. The distribution shall not exceed the lesser of (i)
the Participant's Account; and (ii) the amount necessary to satisfy
the Unforeseeable Financial Emergency, plus any amount necessary to
pay taxes reasonably anticipated as a result of the distribution,
after taking into account the extent to which the hardship
resulting from the Unforeseeable Financial Emergency is or may be
relieved through reimbursement or compensation by insurance or
otherwise by liquidation of the Participant's assets (to the extent
the liquidation of such assets would not itself cause severe
financial hardship). If the Committee in its sole discretion
and in accordance with the Code and Treas. Reg Section
1-409A-3(i)(3) approves the petition for a distribution, the
distribution shall be made within 60 days after the date of
approval. A distribution due to Unforeseeable Emergency shall
not affect any Deferral election previously made by the
Participant. If a Participant's Termination of Service occurs
after a request is approved in accordance with this Section 5.4,
but prior to distribution of the full amount approved, the approval
of the request shall be automatically null and void and the
benefits which the Participant is entitled to receive under the
Plan shall be distributed in accordance with Section 5.1 or
5.2.
Section 6--Election of Payment
Options
6.1
Making Payment Elections. In the Participant's first
Election Form (or, if later, in a special payment form election in
2006 in accordance with Section 6.4), the Participant shall elect
the method under which the vested balance in the Account will be
paid in the events of death or Termination of Service for other
reasons. Absent a timely election, all payments hereunder
will be in a lump sum, 60 days after the payment triggering event
(or after a 6 month delay, if to a Specified Participant). In
all cases, the portion of a Participant's Account deemed invested
in Company Stock (if any) shall be distributed in such stock in
kind, and all other amounts due hereunder shall be paid in
cash.
6.2
Payment Dates. A payment shall be treated as made on the
date specified for purposes of Section 409A of the Code, if it is
made on such date or a later date within the same calendar year or,
if later, by the 15th day of the third calendar month following the
date specified.
6.3
Installments; Minimum Payments. If the Participant
elects an installment payment option, the payment of each annual
installment shall be made on the anniversary of the date of the
first installment payment, and the amount of the annual installment
shall be adjusted on such anniversary for credits or debits to the
Participant's Account. Such adjustment shall be made by
dividing the balance in the Account on such date by the number of
annual installments remaining to be paid hereunder; provided that
the last annual installment due under the Plan shall be the entire
amount credited to the Participant's Account on the date of
payment. Provided, however, that a Participant with an
Account of $10,000 or less at a Retirement or death that occurs on
or after January 1, 2007, will be paid his benefit in a single lump
sum regardless of any previous written election.
6.4
Special 2006 Payment Form Election . Notwithstanding any
provision of the Plan to the contrary, any Participant who has an
Account in the Plan when this 2006 Amended and Restated Plan is
adopted, and who does not otherwise become entitled to a payment
under this Plan during 2006 (without regard to the special election
in this Section), shall have an opportunity to make a new election
to receive any benefits to which the Participant may become
entitled in 2007 and thereafter in any of the payment forms
described in Section 5. Such election must be made, in the
form prescribed by the Committee, on or before December 31, 2006
and shall apply to the Participant's entire Account under the Plan,
including any amounts accrued under the 2004 Plan. No
election made under this Section 6.4 shall be given if effect if
the Participant is entitled to any benefit payments on or before
December 31, 2006, but any such election otherwise shall be
considered irrevocable as of December 31, 2006. To the extent
that any existing Participant fails to elect a payment form in
accordance with the special election provisions of this 2006
Amended and Restated Plan on or before December 31, 2006, the
benefits paid thereafter shall be paid only after Termination of
Service, and then in a single lump sum.
6.5
Payments in 2005 and 2006. Any Participant who becomes entitled
to a payment of benefits in 2005 or 2006 under the terms of the
Plan as in effect prior to this 2006 Amended and Restated Plan's
adoption, shall have the timing and form of such distribution
governed by the terms of the 2004 Plan without regard to or
exercise of any discretion therein to change such timing or form
from that elected in 2004 (or upon entry into the Plan, if
later).
6.6
Changes in Payment Form Elections. A Participant may
delay an In-Service Account payment, or change the method of
payment from a lump sum to installments (or vice versa) at death,
subject to the following requirements:
6.6.1 The new election may not
take effect until at least 12 months after the date on which the
new election is made.
6.6.2 If the new election
relates to a payment other than on account of the death of the
Participant or an Unforeseeable Emergency, the new election must
provide for the deferral of the payment for a period of at least
five years from the date such payment would otherwise have been
made, or in the case of installments, from the date the payments
would otherwise have started.
6.6.3 If the new election
relates to a payment from the In-Service Account, the new election
must be made at least 12 months prior to the date of the first
scheduled payment from such account.
6.7
Acceleration Prohibited. The acceleration of the time or
schedule of any payment due under the Plan is prohibited except as
provided in regulations and administrative guidance promulgated
under Section 409A of the Code. It is not an acceleration of
the time or schedule of payment if the Company waives or
accelerates the vesting requirements applicable to a benefit under
the Plan.
6.8
Payments Delayed by Company in Certain Circumstances.
Notwithstanding anything herein to the contrary, any payment due to
a Participant or Beneficiary on a date specified under Section 5
shall be delayed as follows for all similarly situated
Participants, on a reasonably consistent basis: (i) if the
Committee reas
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