Exhibit No. 10.1
CONSULTING AGREEMENT
This sets forth the terms of the CONSULTING AGREEMENT ("Agreement") made
and entered into as of the 31st day of July, 2006 by and between (i) COMMUNITY
BANK SYSTEM, INC., a Delaware corporation and registered bank holding company,
and COMMUNITY BANK, N.A., a national banking association, both having offices
located in Dewitt, New York (collectively, the "Employer"), and (ii) XXXXXXX X.
XXXXXX, an individual currently residing at 0 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxxxx,
Xxx Xxxx ("Consultant"). This Agreement shall become effective as of August 1,
2006, provided that Consultant retires in good standing from Employer on July
31, 2006.
W I T N E S S E T H
IN CONSIDERATION of the promises and mutual agreements and covenants
contained herein, and other good and valuable consideration, the parties agree
as follows:
1. Engagement. Employer engages the Consultant, and the Consultant hereby
agrees to such engagement, to provide services to Employer as a consultant for a
period of three (3) years beginning on August 1, 2006 and ending on July 31,
2009 ("Period of Engagement"), provided that Consultant retires in good standing
from Employer on July 31, 2006.
2. Consultant Services. During the Period of Engagement, the Consultant
shall hold himself available to perform such services as may reasonably be
assigned to him by the Board of Directors of Community Bank System, Inc. or
Community Bank, N.A. The services which may be required of the Consultant
hereunder may include, but are not limited to, advising and assisting Employer
with the identification and evaluation of merger, acquisition and other growth
opportunities, as well as with the integration of acquired or expanded
businesses with Employer's businesses. Such services may be called upon for not
less than 32, and not more than 80, hours per month during the Period of
Engagement. Employer may, in its sole and absolute discretion, engage other
employees or independent contractors to perform any or all of the services for
which the Consultant is available under the terms of this Agreement. Subject to
the provisions of Section 5 and Section 6, the Consultant may perform services,
as an employee or independent contractor, other than for Employer; provided,
however, that the Consultant also performs the services required of him
hereunder.
3. Compensation. In consideration for the availability of the Consultant's
services hereunder, as well as for any services to be provided hereunder,
Employer shall pay to the Consultant a retainer at the monthly rate of FOUR
THOUSAND DOLLARS ($4,000.00), payable in advance on the first business day of
each calendar month of the Period of Engagement; provided, however, that no
payment shall be made for any month after the month in which this Agreement
terminates as provided in Section 7. Such retainer shall constitute the sole and
exclusive compensation to which the Consultant is or may become entitled for
services rendered pursuant to this Agreement. Without limiting the generality of
the foregoing, the Consultant shall have no right by virtue of his performance
of services pursuant to this Agreement to participate in, or to receive benefits
under, any of the following plans, programs or arrangements which may be
maintained by, or which may be available for individuals providing services to,
Employer: any qualified or non-qualified deferred compensation or retirement
plan; any life, health (including hospitalization, medical and major medical),
accident, or disability plan, whether provided through insurance contracts or
otherwise; and any vacation, sick leave,
severance pay, holiday or other fringe benefit program of any name or nature
whatsoever (including, without limitation, payment of country club dues and use
of an Employer-owned automobile). Consultant expressly waives any right to
participate in, or receive benefits under, all such plans, programs or
arrangements. Nothing in this Section 3, however, shall be deemed to limit or
reduce in any manner any of the payments or benefits due to the Consultant
pursuant to the March 1, 2004 Employment Agreement as amended by the Addendum to
the Employment Agreement dated as of December 1, 2005 (and related supplemental
retirement agreements) between Consultant and Employer.
4. Expenses.
(a) Employer shall provide the Consultant with office facilities and
secretarial and other support services at a location at which Employer maintains
an office, to the extent required by Consultant to perform the consulting
services contemplated herein.
(b) If, in connection with the performance of service hereunder at
the request of Employer, the Consultant incurs out-of-pocket costs for
reasonable expenses of a type for which the senior executive officers of
Employer would be reimbursed by Employer, he shall be entitled to reimbursement
therefor by Employer in accordance with the standards and procedures in effect
from time to time for expense reimbursements to Employer's senior executive
officers.
5. Confidentiality; Nonsolicitation.
(a) During the Period of Engagement and for a period of eighteen
(18) months thereafter, the Consultant, except as previously authorized by
Employer in writing, shall keep confidential and shall refrain from using or
disclosing for the benefit of any person or entity other than Employer any
document or information obtained in the course of performing services for
Employer. The preceding sentence shall not apply to the use or disclosure of any
such document or information: (i) on or following the date on which such
information or document is first readily ascertainable from public or published
information or trade sources; or (ii) in connection with any judicial or
administrative investigation, inquiry or proceeding to the extent compelled
pursuant to applicable law and as to which, unless expressly prohibited by
applicable law, the Consultant has given advance notice to Employer.
(b) The Consultant acknowledges that during the course of his
performance of service for Employer he may develop or otherwise acquire papers,
files or other records involving or relating to confidential or secret plans,
design information of any kind, devices, material, research, new product
development, customers or customer lists. All such papers, files and other
records shall be the exclusive property of Employer and shall, together with any
and all copies thereof, be returned to Employer upon the earliest to occur of
the termination of this Agreement, the expiration of the Period of Engagement,
and a request by Employer for the return thereof.
(c) The Consultant hereby covenants and agrees that, during the
Period of Engagement and for a period of eighteen (18) months thereafter, he
shall not, without the written consent of Employer, either directly or
indirectly:
(i) solicit, offer employment to, or take any other action
intended, or that a reasonable person acting in like circumstances would
expect, to have the effect of causing any officer or employee of Employer
or any affiliate to terminate his or her employment or accept employment
or become affiliated with, or provide services for compensation in any
capacity whatsoever to, any entity that directly or indirectly
competes with Employer in any market area in which it is then active; or
(ii) provide any information, advice or recommendation to any
officer or employee of any entity engaged or to be engaged directly or
indirectly in the same or competing business with Employer in any market
area in which it is then active that is intended, or that a reasonable
person acting in like circumstances would expect, to have the effect of
causing any officer or employee of Employer or any affiliate to terminate
his or her employment or accept employment or become affiliated with, or
provide services for compensation in any capacity whatsoever to, such
competing entity.
Nothing in this Section 5(c) shall prevent the Consultant from providing
employment references to third parties in response to inquiries not initiated by
him.
(d) The duties and obligations imposed on the Consultant under this
Section 5 are intended to be in addition to, and not in limitation or exclusion
of, any duties and obligations which the Consultant may owe to Employer under
applicable law. This Section 5 shall be construed and enforced so as to give
effect to this intent.
6. Non-Competition. The Consultant agrees that, during the Period of
Engagement, the Consultant shall not, directly or indirectly, anywhere within
the State of New York or the Commonwealth of Pennsylvania, engage in a business
(as principal, partner, director, officer, agent, employee, consultant, owner,
independent contractor or otherwise, with or without compensation) or hold a
financial interest in any organization engaged in the business of banking
(commercial or thrift) or which is otherwise engaged in competition with Bank or
its subsidiaries or affiliates. The foregoing restriction shall not be construed
to prohibit the ownership by the Consultant of less than five percent (5%) of
any class of securities of any corporation which is
engaged in any of the foregoing businesses having a class of securities
registered pursuant to the Securities Exchange Act of 1934, as amended, provided
that such ownership represents a passive investment and that neither the
Consultant or any group of persons including the Consultant in any way, either
directly or indirectly, manages or exercises control of any such corporation,
guarantees any of its financial obligations, otherwise takes part in its
business (other than exercising his rights as a shareholder) or seeks to do any
of the foregoing.
7. Termination of Agreement. This Agreement shall terminate immediately
upon the occurrence of any of the following events: (a) the Consultant's breach
of his obligations under Sections 2, 5, or 6 hereof; (b) the Consultant's death
or disability resulting in his inability to perform his obligations under
Section 2 hereof; (c) the Consultant's election to terminate the Period of
Engagement upon thirty (30) days advance written notice to Employer; or (d) the
Consultant's conviction of a felony or a determination by an arbitrator in a
proceeding contemplated by Section 18 that the Consultant has been convicted of
other illegal conduct resulting in substantial injury to Employer or its
businesses or reputation. Following the termination of this Agreement, neither
Employer nor the Consultant shall have any further obligations hereunder, except
for their respective obligations, if any, under Sections 4, 5, 6, and 8.
8. No Employment Relationship Created. The relationship between Employer
and the Consultant shall be that of client and independent contractor. Employer
shall not assume, and specifically disclaims, any obligations of an employer to
an employee which may exist under applicable law. The Consultant shall not have
any of the rights of an employee with respect to Employer, and specifically
waives any and all such rights. The Consultant hereby agrees to take
any and all such actions as Employer may reasonably request in order to
establish that no employment relationship exists between the parties (except for
any such actions as would result in the termination of this Agreement, and
provided that the Consultant shall be reimbursed for reasonable out-of-pocket
expenses incurred by him in connection therewith). The Consultant shall be
treated as an independent contractor for all purposes of federal, state and
local income, payroll and employment taxes.
9. Right to Specific Performance. The Consultant hereby agrees that any
breach of his covenants and agreements under Sections 5 and 6 will cause
irreparable injury to Employer for which Employer has no adequate remedy at law.
Therefore, the Consultant agrees that each and every covenant and agreement set
forth in Sections 5 and 6 shall, in addition to and not by way of limitation of
any other remedy which may be available, be specifically enforceable against him
by any party entitled to enforcement thereof in a proceeding described in
Section 18 hereof.
10. Successors and Assigns. This Agreement will inure to the benefit of
and be binding upon the Consultant, his legal representatives and testate or
intestate distributees, and Employer, and their respective successors and
assigns, including, in the case of Employer, any successor by merger or
consolidation or a statutory receiver or any other person or firm or corporation
to which all or substantially all of the respective assets and business of
Employer may be sold or otherwise transferred. Notwithstanding the foregoing,
the availability of the personal services of the Consultant is an integral part
of this Agreement. The Consultant's duty of performance hereunder shall not be
subject to assignment.
11. Notices. Any communication required or permitted to be given under
this Agreement, including any notice, direction, designation, consent,
instruction, objection or
waiver, shall be in writing and shall be deemed to have been given at such time
as it is delivered personally, or five (5) days after mailing if mailed, postage
prepaid, by registered or certified mail, return receipt requested, addressed to
such party at the address listed below or at such other address as one such
party may by written notice specify to the other party:
If to the Consultant:
Xxxxxxx X. Xxxxxx
0 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxx Xxxx 00000
If to Employer:
Community Bank, N.A.
Attn: President and Chief Executive Officer
0000 Xxxxxxxxxx Xxxxxxx
XxXxxx, Xxx Xxxx 00000
12. Severability. A determination that any provision of this Agreement, in
whole or in part, is invalid or unenforceable shall not affect the validity or
enforceability of any other provision hereof or of any part of the provision in
question not determined to be unenforceable.
13. Waiver. Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
14. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
15. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York without giving
effect to the conflict of law principles of such laws.
16. Headings and Construction. The headings of sections in this Agreement
are for convenience of reference only and are not intended to qualify the
meaning of any section. Any reference to a section number shall refer to a
section of this Agreement, unless otherwise stated.
17. Entire Agreement; Modifications. This instrument contains the entire
agreement of the parties relating to the subject matter hereof, and supersedes
in its entirety any and all prior agreements, understandings or representations
relating to the subject matter hereof, except that this Agreement shall have no
effect on the obligations of Employer for the payment and benefits to be
provided to the Consultant under the March 1, 2004 Employment Agreement as
amended by the Addendum to the Employment Agreement dated as of December 1, 2005
(and related supplemental retirement agreements) between Consultant and
Employer. No modifications of this Agreement shall be valid unless made in
writing and signed by Consultant and Employer.
18. Jurisdiction, Venue and Fees. The jurisdiction of any proceeding
between the parties arising out of, or with respect to, this Agreement shall be
in a court of competent jurisdiction in New York State, and venue shall be in
Onondaga County. Each party shall be subject to the personal jurisdiction of the
courts of New York State. If Consultant is the prevailing party in a proceeding
to collect payments due pursuant to this Agreement, Employer shall reimburse
Consultant for reasonable attorneys' fees incurred by Consultant in connection
with such proceeding.
IN WITNESS WHEREOF, the parties acknowledge their assent to the foregoing
as of the day and year first above written.
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
COMMUNITY BANK SYSTEM, INC.
By: /s/ Xxxx X. Xxxxxxxx, Xx.
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Xxxx X. Xxxxxxxx, Xx.
Chairman
COMMUNITY BANK, N.A.
By: /s/ Xxxx X. Xxxxxxxx, Xx.
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Xxxx X. Xxxxxxxx, Xx.
Chairman
