Exhibit 10.7
FINGER LAKES BANCORP, INC.
SUPPLEMENTAL EXECUTIVE AGREEMENT
WHEREAS, G. Xxxxxx Xxxxxx ("Executive") and Finger Lakes Bancorp, Inc.
(the "Company") desire to enter into this Supplemental Executive Agreement
("Supplemental Agreement") to supplement the Employment Agreement entered into
between the Executive and the Savings Bank of the Finger Lakes (the "Bank"), the
wholly owned subsidiary of the Company, on January 1, 2001 (hereinafter referred
to as the "Employment Agreement"); and
WHEREAS, tax law provisions relating to "golden parachute payments"
could have the effect of reducing the benefits otherwise provided to Executive
under the Employment Agreement and the Executive's supplemental executive
retirement plan as a result of a change in control of the Company or the Bank;
and
WHEREAS, the Board believes that this Supplemental Agreement is in the
best interests of the Company and its shareholders and will provide the benefits
intended to be provided to Executive in the event of a change in control of the
Company or the Bank, without any reduction because of tax code "penalties" or
excise taxes relating to a change in control; and
WHEREAS, the Company and the Executive also desire to enter into this
Supplemental Agreement for the purpose of providing further incentive to the
Executive to achieve successful results in the management and operations of the
Company.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereto hereby agree as follows:
1. In the event of a Change in Control (as defined in the Employment
Agreement) of the Bank or the Company, the Executive shall be entitled to
receive, pursuant to this Supplemental Agreement, an amount, payable by the
Company, in addition to any compensation or benefits payable by the Company
pursuant to Section 5 of the Employment Agreement, which amount shall equal the
difference, if any, between (i) the amount that would be paid under the
Employment Agreement pursuant to Section 5 thereof without regard to any
reduction that may be required by reason of the second proviso of the first
sentence of Section 5(c), and (ii) the amount that is actually paid under the
terms of the Employment Agreement.
2. In addition, in each calendar year that Executive is entitled to
receive payments or benefits under the provisions of the Employment Agreement
and this Supplemental Agreement, the independent accountants of the Company
shall determine if an excess parachute payment (as defined in Section 4999 of
the Internal Revenue Code of 1986, as amended (the "Code")) exists. Such
determination shall be made after taking any reductions permitted pursuant to
Section 280G of the Code and the regulations thereunder. Any amount determined
to be an excess parachute payment
after taking into account such reductions shall be hereafter referred to
as the "Initial Excess Parachute Payment". As soon as practicable after a Change
in Control, the Initial Excess Parachute Payment shall be determined. Upon the
Date of Termination following a Change in Control, the Company shall pay
Executive, subject to applicable withholding requirements under applicable state
or federal law an amount equal to:
(i) twenty (20) percent of the Initial Excess Parachute
Payment (or such other amount equal to the tax
imposed under Section 4999 of the Code), and
(ii) such additional amount (tax allowance) as may be
necessary to compensate Executive for the payment by
Executive of state and federal income and excise
taxes on the payment provided under Clause (i) and on
any payments under this Clause (ii). In computing
such tax allowance, the payment to be made under
Clause (i) shall be multiplied by the "gross up
percentage" ("GUP"). The GUP shall be determined as
follows:
Tax Rate
GUP = ---------------
1- Tax Rate
The Tax Rate for purposes of computing the GUP shall
be the highest marginal federal and state income and
employment-related tax rate, including any applicable
excise tax rate, applicable to the Executive in the
year in which the payment under Clause (i) is made.
3. Notwithstanding the foregoing, if it shall subsequently be
determined in a final judicial determination or a final administrative
settlement to which Executive is a party that the excess parachute payment as
defined in Section 4999 of the Code, reduced as described above, is different
from the Initial Excess Parachute Payment (such different amount being hereafter
referred to as the "Determinative Excess Parachute Payment") then the Company's
independent accountants shall determine the amount (the "Adjustment Amount") the
Executive must pay to the Company or the Company must pay to the Executive in
order to put the Executive (or the Company, as the case may be) in the same
position as the Executive (or the Company, as the case may be) would have been
if the Initial Excess Parachute Payment had been equal to the Determinative
Excess Parachute Payment. In determining the Adjustment Amount, the independent
accountants shall take into account any and all taxes (including any penalties
and interest) paid by or for Executive or refunded to Executive or for
Executive's benefit. As soon as practicable after the Adjustment Amount has been
so determined, the Company shall pay the Adjustment Amount to Executive or the
Executive shall repay the Adjustment Amount to the Company, as the case may be.
The purpose of this paragraph is to assure that (i) the Executive is not paid
more as reimbursement for the golden parachute excise tax than it may ultimately
be determined is necessary to make him whole, and (ii) if it is subsequently
determined that additional golden parachute excise tax is owed by him,
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additional reimbursement payments will be made to him to make him whole for the
additional excise tax.
4. In each calendar year that Executive receives payments or benefits
under the Employment Agreement, Executive shall report on his state and federal
income tax returns such information as is consistent with the determination made
by the independent accountants of the Company as described above. The Company
shall indemnify and hold Executive harmless from any and all losses, costs and
expenses (including without limitation, reasonable attorney's fees, interest,
fines and penalties) that Executive incurs as a result of so reporting such
information. Executive shall promptly notify the Company in writing whenever the
Executive receives notice of the institution of a judicial or administrative
proceeding, formal or informal, in which the federal tax treatment under Section
4999 of the Code of any amount paid or payable under this Supplemental Agreement
is being reviewed or is in dispute. The Company shall assume control at its
expense over all legal and accounting matters pertaining to such federal tax
treatment (except to the extent necessary or appropriate for Executive to
resolve any such proceeding with respect to any matter unrelated to amounts paid
or payable pursuant to this contract). The Executive shall cooperate fully with
the Company in any such proceeding. The Executive shall not enter into any
compromise or settlement or otherwise prejudice any rights the Company may have
in connection therewith without prior consent to the Company.
IN WITNESS WHEREOF, Finger Lakes Bancorp, Inc. has caused this
Supplemental Agreement to be executed and its seal to be affixed hereunto by its
duly authorized officer, and Executive has signed this Supplemental Agreement as
of the 6th day of November, 2001.
ATTEST: FINGER LAKES BANCORP, INC.
/s/XXXXX X. XXXXXXX By: /s/XXXXX X. XXXXXX
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Secretary Xxxxx X. Xxxxxx
Chairman, Salary and Personnel
Committee
WITNESS: EXECUTIVE
/s/XXXX X. XXXXXXXX By: /s/G. XXXXXX XXXXXX
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