EX-10.8
(Exhibit 10.8) Employment Agreement-Xxxxxxxx X. Xxxxx
Amended 6/2001
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as
of the 15th day of March, 2000, between FIRST TIER BANK & TRUST ("Employer"), a
bank chartered under the laws of New York having its principal office at 000
Xxxx Xxxxx Xxxxxx, Xxxxx, Xxx Xxxx 00000 and XXXXXXXX X. XXXXX ("Executive"), an
individual residing at 000 Xxxxxxx Xxxxx, Xxxxx, Xxx Xxxx 00000.
WHEREAS, Employer wishes to employ Executive in an executive capacity, as its
President, and Executive wishes to accept such employment on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises, benefits and covenants
herein contained, Employer and Executive hereby agree as follows:
1. Effective Date; Term.
1.1 Effective Date. This Agreement shall be effective commencing on the date
hereof (the "Effective Date").
1.2 Initial Term. Employer employs Executive, and Executive accepts such
employment, for a three (3) year period commencing on the Effective Date (the
"Initial Term").
1.3 Renewal Term. This Agreement will automatically renew for successive three
year terms (each a "Renewal Term") upon the expiration of the Initial Term or a
subsequent Renewal Term unless either party provides written notice to the other
at least ninety (90) days before the end of the Initial Term or Renewal Term
that such party does not intend to renew this Agreement upon the expiration
thereof.
1.4 Termination. This Agreement may be terminated prior to the expiration of the
Initial Term or any Renewal Term as provided in Sections 4.1 and 4.4 of this
Agreement (see Early Retired Employee).
2. Scope of Employment.
2.1 Position and Duties. During the term of this Agreement, Employer shall
employ Executive to serve as the President of Employer. In such capacity,
Executive shall perform such executive, administrative and operational duties as
may be assigned to Executive from time to time by the Board of Directors of
Employer, provided that such assignments are materially consistent with the
current job description.
2.2 Exclusive Efforts. Executive agrees to serve Employer faithfully and to the
best of Executive's ability and to devote Executive's entire business time,
attention and efforts to the interests and business of Employer, its
subsidiaries and their affiliates.
2.3 Compliance with Laws. Executive agrees at all times to strictly adhere to
and perform all his duties in accordance with applicable laws, rules and
regulations and the written policies and procedures of Employer in effect from
time to time.
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3. Compensation, Benefits and Expenses.
3.1 Base Salary. Except as otherwise provided in this Agreement, during the
period from the Effective Date through December 31, 2000 (the "First Year")
Employer shall pay to Executive a base salary at a rate of $114,450 per year
(the "Base Salary"). The Base Salary may be increased, in the sole discretion of
Employer, in a manner comparable to other senior executives, during the
remainder of the terms of this Agreement, but may not be decreased. Employer
shall pay the Base Salary to Executive in equal installments pursuant to
Employer's standard payroll policies and Executive's salary shall be subject to
such withholding or deductions as may be mutually agreed between Employer and
Executive or required by law.
3.2 Bonus. In addition to the salary set forth in Section 3.1, Executive may
receive bonuses as follows:
3.2.1 If the Employer meets or exceeds target performance factors
pursuant to the Employer's Senior Management Incentive Compensation
Plan, the Executive shall be paid a bonus which shall be determined by
the Compensation Committee of the Board of Directors of Employer.
3.2.2 The bonus earned by Executive each year during the term of this
Agreement, if any, shall be paid to Executive in a lump sum promptly
after the Employer's audited annual financial results are publicly
disclosed.
3.2.3 Payment of any bonus shall be subject to such withholding or
deductions as may be mutually agreed between Employer and Executive or
required by law.
3.3 Incentive Stock Plan Benefits. During the period of his employment,
Executive shall be entitled to receive grants of options under any incentive
stock plan operated by Financial Institutions, Inc. ("FII") for its employees
and those of its subsidiaries, in such amounts as may be determined by the FII
Board of Directors or the FII Compensation Committee in a manner comparable to
other senior executives of FII.
3.4 Fringe Benefits. During the period of his employment, Executive shall be
entitled to participate in FII's plans for the welfare and benefit of its
employees to the extent Executive satisfies the requirements provided in such
health plans, including health standards, and other qualifications for
participation. In the event Executive becomes a "Retired Early Employee" as
defined in subparagraph 4.4.1, or is terminated for reasons other than those set
forth in subparagraphs 4.1.3, 4.1.4, 4.1.6 or 4.1.7 health insurance and dental
benefits will be continued as if Executive continued to remain an employee for
the remainder of the Initial Term or Renewal Term then in effect, or until
Executive obtains a position offering comparable benefits, whichever occurs
first.
3.5 Vacation and Holidays. During the term of this Agreement, Executive shall
accrue paid vacation in accordance with Employer's policies of four (4) weeks
per calendar year. Executive shall be entitled to take accrued vacation days and
paid holidays in accordance with Employer's policies applicable to its employees
generally. Executive may not carry forward vacation days from year to year.
3.6 Expenses. During the term of this Agreement, Employer authorizes Executive
to incur reasonable and necessary out-of-pocket business expenses in the course
of performing his duties and rendering services hereunder in accordance with
Employer's policies with respect thereto, and Employer shall reimburse Executive
for all such expenses, provided (i) such expenses and the purpose for which they
were incurred, are in accordance with Employer's policies, and (ii) Executive
timely submits to Employer expense reports and substantiation of the expenses in
accordance with Employer's policies.
3.7 Country Club Dues and Automobile Expenses. During the term of this
Agreement, Employer shall reimburse Executive for monthly membership dues at a
country club of Executive's choosing, and shall provide Executive with use of a
suitable automobile.
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4. Termination of Employment.
4.1 Events of Termination. Executive's Employment by Employer shall terminate at
the expiration of the Initial Term or any Renewal Term provided timely notice is
given as provided in Section 1.3 and shall terminate prior to the expiration of
the then current term, if any of the following occur:
4.1.1 the death of Executive;
4.1.2 the date on which Executive is (i) determined to be
"permanently disabled" as defined under the disability
insurance policy covering Executive, or (ii) if Executive is
not covered by any such disability policy, Executive is
determined to be "totally disabled" by the Board of Directors
of Employer based upon the advice of a board certified
physician reasonably acceptable to Employer and Executive or
his legal representative, which may include a determination
that Executive is or may be unable, because of physical or
mental illness or incapacity or otherwise, to fulfill his
duties under this Agreement for six consecutive months
4.1.3 the commission by Executive of, or the determination by the
Board of Directors, based on reasonable evidence of misconduct
as presented by a law enforcement agency, or as a result of an
internal or external audit or investigation, that the
Executive has committed (i) a criminal offense involving the
violation of state or federal law, (ii) a breach of fiduciary
duty, (iii) a material act of dishonesty, fraud or
misrepresentation, or (iv) any act of moral turpitude which
the Board of Directors determines has or may be reasonably
expected to have a material detrimental impact on Employer's
business or operations, or which may prevent, because of its
demonstrated or demonstrable effect on employees, regulatory
agencies or customers, Executive from effectively performing
his executive and other duties under this Agreement;
4.1.4 Executive materially neglects to satisfactorily perform the
duties which Executive is required to perform under this
Agreement or performs such duties other than in good faith, as
determined by the Board of Directors. The Board will provide a
written notice to the Executive, specifying the unsatisfactory
performance and suggest what must be done to improve and
maintain such performance. The written notice will also
specify the time period (considered probationary period) given
the Executive to correct such conduct.
4.1.5 the termination of Executive's employment by Employer during
the term of this Agreement for any reason without cause other
than pursuant to Sections 4.1.1, 4.1.2, 4.1.3 or 4.1.4;
4.1.6 Executive's resignation or retirement; or
4.1.7 the mutual consent to such termination in writing by Executive
and Employer.
4.2 Time of Termination. Executive's employment with Employer shall terminate
immediately upon Executive's death, upon written notice of termination from
Employer or Executive upon the occurrence of an event specified in Sections
4.1.2, 4.1.3, 4.1.5 or 4.1.6, upon the expiration of the cure period specified
in Section 4.1.4, on the date specified in the agreement terminating Executive's
employment pursuant to Section 4.1.7, or upon expiration of the Initial Term or
a Renewal Term if timely notice is given pursuant to Section 1.3 (as applicable,
the "Termination Date"). Employer's and Employee's obligations under this
Agreement shall terminate upon such termination of employment without any
further action by the parties except to the extent specifically provided herein.
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4.3 Effect of Termination of Employment. Following the Termination Date:
4.3.1 Executive shall return all property of Employer as provided in
Section 6 of this Agreement;
4.3.2 Executive's base salary shall cease to accrue;
4.3.3 Subject to Section 4.4, the Board of Directors shall pay an
appropriate bonus to Executive as his bonus or other incentive
compensation for the period through the Termination Date computed
consistently with the manner in which Executive's bonus or incentive
compensation would have been determined for such period, as defined in
Section 3.2, if Executive's employment had not terminated;
4.3.4 Executive's participation in FII's benefit plans shall cease
except as required by law, the terms of the plan(s) or as provided in
subparagraph 3.4 of this Agreement;
4.3.5 Executive shall cease to accrue vacation days and shall be paid
for unused vacation time accrued in accordance with Employer's policies
applicable to employees generally; and
4.3.6 Executive shall submit any claims for reimbursement of business
expenses incurred in accordance with Section 3.5 within the time period
required under Employer's policies generally or Employer will not be
obligated to reimburse such expenses.
4.3.7 In the case of an Early Termination, the Employer shall have no
further liability to Executive hereunder, except as explicitly stated
in this Agreement, other than for earned but unpaid compensation and
those benefits (accrued but unpaid) to which Executive is entitled
under this Agreement through the Termination Date, including
termination in the cases listed in Section 3.4, continued fringe
benefits as provided in such Section 3.4.
Upon Termination of Employment, for any reason, all split dollar
insurance policies in effect on the Executive's life will terminate.
The Executive shall have the right, under the terms of the split dollar
agreement, to purchase the policies by paying to the Corporation an
amount as defined in Article 7.1 of the Split Dollar Agreement.
4.3.8 If, during the term of this Agreement, the Executive is
terminated for reasons other than those set forth in subparagraphs
4.1.1, 4.1.2, 4.1.3, 4.1.4, 4.1.6 or 4.1.7, Employer shall, during the
one year period after the Termination Date, make equal monthly payments
or a single lump sum payment to the Executive (which shall not be
deemed base annual salary payments) in an amount such that the present
value of all such payments, determined as of the Termination Date,
equals the sum of (a) the Base Salary Amount paid to Executive, and (b)
the annual incentive compensation earned by Executive for the most
recent tax year ending before Termination Date occurred. It shall be at
the discretion of the Compensation Committee, as to whether the payment
is made as a single lump sum payment or equal monthly payments.
4.4 Change of Control and Change of Authority
4.4.1 Retired Early Employee. If a Change of Control and Change of
Authority, as such terms are defined in subparagraph 4.4.7 below,
occurs during the term of the Executive's employment under this
Employment Agreement, either the Executive, on the one hand, or
Employer, on the other, may elect by written notice, given to the other
party or parties, at any time within twelve (12) months after such
Change of Control and Change of Authority, to terminate the employment
of the Executive by Employer, whereupon the Executive will become a
"Retired Early Employee," and will be entitled to receive such payments
as are provided hereafter in this Section 4.4. Such election and the
termination of the Executive's employment shall become effective on the
first day
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of the second calendar month commencing after delivery of the notice or
on such earlier date as the Executive in his sole discretion may
specify (the "Effective Date").
4.4.2 Cash Payments. If the Executive should become a Retired Early
Employee hereunder, Employer shall, during the period commencing on the
Effective Date and ending two years thereafter (the "Pay-Out Period"),
make equal monthly payments or a single lump sum payment to the
Executive (which shall not be deemed base annual salary payments) in an
amount such that the present value of all such payments, determined as
of the Effective Date, equals the sum of two times the Base Salary
Amount paid to Executive, as such term is defined in subparagraph 4.4.7
below, plus the sum of the annual bonus earned by Executive, for the
most recent two (2) tax years ending before the date on which the
Change of Control and Change of Authority occurred. The Executive shall
request the method of payment, however, it shall be at the discretion
of the Compensation Committee, as to whether the payment is made as a
single lump sum payment or equal monthly payments. The payment(s)
provided for in subparagraph 4.3.8 do not apply to Retired Early
Employees who receive cash payment(s) pursuant to this subparagraph.
If at any time during the Pay-Out Period the Compensation Committee of
the Board in its sole discretion shall determine, upon application of
the Retired Early Employee supported by substantial evidence, that the
Retired Early Employee is then under a severe financial hardship
resulting from (i) a sudden and unexpected illness or accident of the
Retired Early Employee or any of his dependents (as defined in section
152(a) of the Internal Revenue Code), (ii) loss of the Retired Early
Employee's property due to casualty, or (iii) other similar
extraordinary and unforeseeable circumstance arising as a result of
events beyond the control of the Retired Early Employee, Employer shall
make available to the Retired Early Employee, in one (1) lump sum, an
amount up to but not greater than the present value of all monthly
payments remaining to be paid to him in the Pay-Out Period, calculated
as of the date of such determination by the Compensation Committee of
the Board, for the purpose of relieving such severe financial hardship
to the extent the same has not been or may not be relieved by (xi)
reimbursement or compensation by insurance or otherwise, (xii)
liquidation of the Retired Early Employee's assets (to the extent such
liquidation would not itself cause severe financial hardship), or
(xiii) distributions from other benefit plans. If (a) the lump sum
amount thus made available is less than (b) the present value of all
such remaining monthly payments, Employer shall continue to pay to the
Retired Early Employee monthly payments for the duration of the Pay-Out
Period, but from such date forward such monthly payments will be in a
reduced amount such that the present value of all such reduced payments
will equal the difference between (b) and (a), above. The Retired Early
Employee may elect to waive any or all payments due him under this
subparagraph.
4.4.3 Acceleration of Stock Options. All options and other rights that
Executive may hold to purchase or otherwise acquire Common Stock of FII
shall immediately become vested and exercisable in full for the total
number of shares that are or might become purchasable thereunder, in
each case without further condition or limitation except the giving of
notice of exercise and the payment of the purchase price thereunder
(but without amendment of the plan under which they were issued). At
his discretion, Executive may elect to surrender to Employer his rights
in any such options and rights held by him and, upon that surrender,
Employer shall pay him an amount in cash equal to the aggregate spread
between the exercise prices of all those options and rights and the
value of the Common Stock purchasable thereunder (or of any other
security into which the Common Stock has been exchanged or converted)
as of the date of the termination of employment, the value to be
determined by the reported last sale price of the Common Stock or that
other security (or the mean between the reported last bid and asked
prices) on that date on NASDAQ (or, if it is not NASDAQ, on whatever
may then be the principal exchange or quotation system on which the
Employer's Common Stock or that other security is traded at that time).
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4.4.4 Life Insurance Policies. Employer shall repay any policy loans
previously taken on the Employer's insurance policies on Executive's
life (provided that the directors of Employer were given written notice
promptly after the making of any such loans which were made while
Executive was the president and chief executive officer of Employer),
and then shall transfer to Executive any and all of its right, title,
and interest in and to all Employer life insurance policies on
Executive's life (and upon that transfer, Executive shall be deemed to
have released Employer from any and all obligations it then owes to him
to maintain and pay premiums on those policies, all other provisions of
any agreements under which those policies were agreed to be maintained,
however, to remain in effect).
Upon termination of employment, all split dollar policies in effect on
the Executive's life will terminate. The Executive shall have the
right, under the terms of the split dollar agreement, to purchase the
policies by paying to the Corporation an amount as defined in Article
7.1 of the Split Dollar Agreement.
4.4.5 Death of Retired Early Employee. If the Retired Early Employee
dies before receiving all monthly payments payable to him under
subparagraph 4.4(b), above, Employer shall pay to the Retired Early
Employee's estate, one (1) lump sum payment in an amount equal to the
present value of all such remaining unpaid monthly payments, determined
as of the date of death of the Retired Early Employee. If the Retired
Early Employee was receiving health insurance and dental benefits
pursuant to paragraph 3.4 hereof at the time of death, employer shall
continue to provide such health insurance and dental benefits to the
dependents of the deceased Retired Early Employee for the duration
specified in paragraph 3.4, if the Retired Early Employee had not died.
4.4.6 Indemnification of Executive. In the event a Change of Control
and Change of Authority occurs, Employer shall indemnify Executive for
all reasonable legal fees and expenses subsequently incurred by
Executive through legal counsel approved in advance by Employer [(which
approval shall not be unreasonably withheld)] in seeking to obtain or
enforce any right or benefit provided under this Employment Agreement,
including but not limited to the rights and benefits provided under
this Section 4.4 and whether or not Executive has become a Retired
Early Employee hereunder, provided, however, that such right to
indemnification will not apply if and to the extent that a court of
competent jurisdiction shall determine that any such fees and expenses
have been incurred as a result of Executive's bad faith or willful
misconduct [or if such a court dismisses the action seeking to enforce
the right or benefit for failure to state a claim]. Indemnification
payments payable hereunder by Employer shall be made not later than
thirty (30) days after a request for payment has been received from
Executive with such evidence of indemnifiable fees and expenses as
Employer may reasonably request.
4.4.7 Definitions.
(i) The "Base Salary Amount" for purpose of this Paragraph 4.4
shall equal the annual compensation payable by Employer to Executive
and includable by Executive in gross income for the most recent year
ending before the date on which the Change of Control and Change of
Authority occurred.
(ii) A "Change of Control" shall be deemed to have occurred if
(A) any individual corporation (other than
FII), partnership, trust, association, pool,
syndicate, or any other entity or any group of
persons acting in concert becomes the beneficial
owner, as that concept is defined in Rule 13d-3
promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as the
result of any one or more securities transactions
(including gifts and stock repurchases but excluding
transactions described in subdivision (B),
following), of securities of FII possessing twenty
percent (20%) or more of the voting power for the
election of directors of such entity,
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(B) there shall be consummated any
consolidation, merger or stock-for-stock exchange
involving FII or the securities of FII in which the
holders of voting securities of FII immediately prior
to such consummation own, as a group, immediately
after such consummation, voting securities of FII
(or, if FII does not survive such transaction voting
securities of the corporation surviving such
transaction) having less than fifty percent (50%) of
the total voting power in an election of directors of
FII (or such other surviving corporation), excluding
securities received by any members of such group
which represent disproportionate percentage increases
in their shareholdings vis-a-vis the other members of
such group,
(C) "approved directors" shall constitute
less than a majority of the entire Board of
Directors, with "approved directors" defined to mean
the members of the Board of Directors of Employer as
of the date of this Agreement and any subsequently
elected members who shall be nominated or approved by
a majority of the approved directors on the Board
prior to such election, or
(D) there shall be consummated any sale,
lease, exchange or other transfer (in one transaction
or a series of related transactions, excluding any
transaction described in subdivision (B), above), of
all, or substantially all, of the assets of FII to a
party which is not controlled by or under common
control with FII.
(iii) A "Change of Authority" shall be deemed to have
occurred if upon the occurrence of a Change in
Control, Executive, without his/her written consent,
is required by Employer to accept any demotion, loss
of title, or office, reduction in his annual
compensation or benefits, or relocation of his
principal place of employment by more than 25 miles
from its location immediately prior to the Change in
Control; provided, however, that Executive may
consent in writing to any such demotion, loss,
reduction or relocation.
5. Confidentiality; Inventions.
5.1 Confidential Information. Executive has and will have access to and
participate in the development of or be acquainted with confidential or
proprietary information and trade secrets related to the business of Employer,
its subsidiaries and any affiliates (collectively, the "Companies"), including
but not limited to (i) business plans, software programs, operating plans,
marketing plans, financial reports, operating data, budgets, wage and salary
rates, pricing strategies and information, terms of agreements with suppliers or
customers and others, customer lists, reports, correspondence, tapes, disks,
tangible property and specifications owned by or used in the Companies'
businesses; (ii) operating strengths and weaknesses of the Companies' officers,
directors, employees, agents, suppliers and customers, and/or (iii) information
pertaining to future developments such as, but not limited to, research and
development, software development or enhancement, future marketing plans or
ideas, and plans or ideas for new services or products, (iv) all information
which is learned or developed by Executive in the course and performance of his
duties under this Employment Agreement, including without limitation, reports,
information and data relating to the Employer's acquisition strategies, and (v)
other tangible and intangible property which is used in the business and
operations of the Companies but not made publicly available (i) through (v) are,
collectively, (the "Confidential Information").
5.2 Treatment of Confidential Information; Confidentiality Agreements. Executive
shall not, directly or indirectly, disclose, use or make known for his or
another's benefit any Confidential Information of the Companies or use such
Confidential Information in any way except in the best interests of the
Companies in the performance of Executive's duties under this Agreement. In
addition, to the extent that Employer has entered into a confidentiality
agreement with any other person or entity Executive agrees to comply with the
terms of such confidentiality agreement and to be subject to the restrictions
and limitations imposed by such confidentiality agreements as if he was a party
thereto.
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5.3 Inventions. Executive shall promptly disclose both orally and in writing to
Employer all discoveries, ideas, software, developments, discoveries, designs,
improvements, innovations and inventions (collectively referred to herein as
"Inventions"), whether patentable or not, either relating to the existing or
contemplated business, products, services, plans, processes, or procedures of
Employer, or suggested by or resulting from Executive's work at Employer, or
resulting wholly or in part from the use of Employer's time, material,
facilities or ideas, which Executive made or conceived or may make or conceive,
whether or not during working hours, alone or with others, at any time during
the term of this Agreement or within one year thereafter, and Executive agrees
that all such inventions shall be the exclusive property of the Employer.
5.4 Assignment of Inventions. Executive hereby assigns to Employer all his
rights and interests in and to all such inventions and all patents, copyrights,
trademarks or other types of intellectual property protection which may be
obtained on them, in this and all foreign countries. At Employer's expense, but
without charge to it, Executive agrees to execute, acknowledge and deliver to
Employer any specific assignments to any such inventions or other relevant
documents and to take any such further action as may be considered necessary by
Employer at any time to obtain or defend letters patent in any and all
countries, to obtain documents relating to registration, ownership or transfer
of copyrights, to vest title in such inventions in Employer or its assigns, or
to obtain for Employer any other legal protection for such inventions.
5.5 Survival of Obligations. The obligations of Executive under this Section 5
shall survive the termination of Executive's employment and the expiration or
termination of this Agreement.
6. Return of Employer's Property. Immediately upon the Termination
Date, Executive shall deliver to Employer all copies of data, information and
knowledge, including, without limitation, all notes, reference materials,
sketches, diagrams, reproductions, memoranda, documentation and records
incorporating or reflecting any Confidential Information, documents,
correspondence, notebooks, reports, computer programs, names of full-time and
part-time employees and consultants, and all other materials and copies thereof
(including computer disks and other electronic media) relating in any way to the
business of Employer in any way obtained by Executive during the period of his
employment with Employer, along with any automobile provided by Employer for
Executive's use (the "Employer's Property"). The Employer's Property shall
belong exclusively to the Employer and shall be delivered to the Employer
immediately upon termination of Executive's employment with the Employer, for
whatever reason said termination occurs. The obligations of Executive under this
Section 6 shall survive the termination of Executive's employment and the
expiration or termination of this Agreement.
7. Non-competition and Non-solicitation.
7.1 Non-competition. During the term of this Agreement and during the period for
which Executive is entitled to receive compensation after the termination of
this Agreement pursuant to subparagraphs 4.3.8 or 4.4.2, regardless of whether
such compensation is paid in a lump sum rather than monthly payments, Employee
shall not engage, anywhere within New York State, whether directly or
indirectly, as principal, owner, officer, director, agent, employee, consultant
or partner, in the management of a bank holding company, commercial bank,
savings bank, credit union or any other financial services provider that
competes with FII, its subsidiaries or its products or programs ("Restricted
Activities"), provided that the foregoing shall not restrict Executive from
engaging in any Restricted Activities which Employer directs Executive to
undertake or which Employer otherwise expressly authorizes. The foregoing shall
not restrict Executive from owning less than 5% of the outstanding capital stock
of any company which engages in Restricted Activities, provided that Executive
is not otherwise involved with such company as an officer, director, agent,
employee or consultant
7.2 Scope and Breach of Non-Competition. Subject to Executive's continuing
compliance with the provisions of Section 7.1, Executive may be a principal,
owner, officer, director, agent, consultant or partner, of any corporation,
partnership or other entity. The foregoing provisions of Section 7.1 shall not
be held invalid because of the scope of the territory covered, the actions
restricted thereby, or the period of time such covenant is operative. In the
event of a breach or threatened breach by the Executive of
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Section 7.1, Employer shall be entitled to a temporary restraining order and an
injunction restraining Executive from the commission of such breach. Nothing
herein shall be construed as prohibiting Employer from pursuing any other
remedies available to it for such breach or threatened breach, including the
recovery of money damages.
7.3 Non-solicitation. During the term of this Agreement and for a two (2) year
period following the Termination Date, Executive shall not, directly or
indirectly, without the written consent of Employer: (i) recruit or solicit for
employment any employee of Employer or FII or encourage any such employee to
leave their employment with Employer or FII, or (ii) solicit, induce or
influence any customer, supplier, lessor or any other person or entity which has
a business relationship with Employer or FII to discontinue or reduce the extent
of such relationship with Employer or FII.
7.4 In the event that the Executive breaches any of the provisions of paragraphs
7.1,7.2, or 7.3, the cash payments provided for by subparagraphs 4.3.8 or 4.4.2
shall cease immediately. Executive shall have no further entitlement to receive
cash payments pursuant to subparagraphs 4.3.8 or 4.4.2 and Employer shall have
no further liability for such payments after the date of Executive's breach.
7.5 The Executive and the Employer believe that the restrictions and covenants
in this section are reasonable and enforceable under the circumstances. However,
if any one or more of the provisions in this section shall, for any, reason be
held to be excessively broad as to time, duration, geographic scope, activity,
or subject, it shall be construed by limiting and reducing it so as to be
enforceable to the extent compatible with law and with the Executive's and the
Employer's intentions as stated herein.
7.6 Survival of Obligations. The obligations of Executive and Employer under
this Section 7 shall survive the termination of Executive's employment and the
expiration or termination of this Agreement.
8. Miscellaneous.
8.1 Remedies. Each of the parties hereto shall have all rights and remedies set
forth in this Agreement. All remedies hereunder are cumulative and are not
exclusive of any other remedies provided by law or any other agreement or
contract to which such person is a party. Each party shall be entitled to
enforce such rights specifically (without the requirement of posting a bond or
other security), to recover damages by reason of any breach of any provision of
this Agreement and to exercise all other rights granted by law. Without limiting
the generality of the foregoing, Executive specifically agrees that any breach
or threatened breach of Sections 5, 6 or 7 would cause irreparable injury to
Employer, that money damages would not provide an adequate remedy to Employer,
and that Employer shall accordingly have the right and remedy (i) to obtain an
injunction prohibiting Executive from violating or threatening to violate such
provisions, (ii) to have such provisions specifically enforced by any court of
competent jurisdiction, and (iii) to require Executive to account for and pay
over to Employer all compensation, profits, monies, accruals, increments or
other benefits derived or received by Executive as the result of any
transactions constituting a breach of such provisions.
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8.2 Entire Agreement; Amendments and Waivers. This Agreement (including the
schedule hereto) represents the entire understanding and agreement between the
parties hereto with respect to the subject matter hereof and can be amended,
supplemented or changed, and any provision hereof can be waived, only by a
written instrument making specific reference to this Agreement signed by the
party against whom enforcement of any such amendment, supplement, modification
or waiver is sought. The waiver by any party hereto of a breach of any provision
of this Agreement shall not operate or be construed as a further or continuing
waiver of such breach or as a waiver of any other or subsequent breach. No
failure on the part of any party to exercise, and no delay in exercising, any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of such right, power or remedy by such party
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy.
8.3 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without reference to its
principles of conflicts of law.
8.4 Notices. All notices, demands, solicitations of consent or approval, and
other communications hereunder shall be in writing and shall be delivered
personally, mailed, sent by telefax or sent by recognized commercial courier
(e.g., Federal Express). If delivered personally, such notice shall be deemed to
be given when delivered to the intended recipient. If delivered by mail, such
notice shall be deemed to be given five (5) days after having been deposited in
the United States mail so addressed, with postage thereon prepaid. If delivered
by telefax, such notice shall be deemed given when transmission of the notice is
complete to the telefax number of the other party. If delivered by recognized
commercial carrier, such notice shall be deemed given one (1) day after having
been delivered to a recognized commercial carrier for overnight delivery. All
such notices shall be addressed to the address set forth in the preamble to this
Agreement or to such other address which such party shall have given to the
other party for such purpose by notice hereunder.
8.5 Captions. The headings used in this Agreement are intended for reference
purposes only and shall not control or affect in any manner the meaning or
interpretation of any of the provisions of is Agreement.
8.6 Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
provisions of this Agreement, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted. All
provisions of this Agreement shall be enforced to the full extent permitted by
law.
8.7 Interpretation. The parties acknowledge and agree that: (i) each party and
its counsel reviewed and negotiated the terms and provisions of this Agreement
and have contributed to its revision; (ii) the rule of construction to the
effect that any ambiguities are resolved against the drafting party shall not be
employed in the interpretation of this Agreement; and (iii) the terms and
provisions of this Agreement shall be construed fairly as to all parties hereto,
regardless of which party was generally responsible for the preparation of this
Agreement.
8.8 Counterparts. This Agreement may be executed in any number of copies, each
of which shall be deemed an original, and all of which together will be deemed
one and the same instrument.
8.9 Successors and Assigns. All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind, and inure to
the benefit of the respective successors and permitted assigns of the parties
hereto whether so expressed or not. Neither party shall transfer or assign this
Agreement or any of their rights or obligations hereunder, whether by operation
of law or otherwise, without the prior written consent of the other party
hereto. Any attempted transfer or assignment of this Agreement or any rights or
obligations hereunder in violation of this provision shall be void ab initio.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
FINANCIAL INSTITUTIONS, INC. FIRST TIER BANK & TRUST
By: /s/Xxxxx X. Xxxxxxxx By: /s/Xxxxxxxx X. Xxxxx
--------------------------- -----------------------------
Xxxxx X. Xxxxxxxx Xxxxxxxx X. Xxxxx
President & CEO President & CEO
