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Exhibit 10.5
AGREEMENT FOR SEVERANCE UPON CHANGE IN CONTROL
THIS AGREEMENT is made and entered into as of the 25th day of March,
1998, by and among SKANEATELES BANCORP, INC., a Delaware corporation (the
"Company"), and its wholly-owned subsidiary, SKANEATELES SAVINGS BANK (the
"Bank"), each having its principal place of business at 00 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxx Xxxx 00000-0000, and Xxxxxxx X. Xxxxx, residing at 00 X.
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000 ("Employee").
In consideration of the mutual covenants herein contained, the Company,
the Bank and Employee, intending to be legally bound, hereby agree as follows:
1. PURPOSE OF THIS AGREEMENT. Employee is a key officer and employee of
the Bank. Although the Company does not presently anticipate a change in control
of the Bank, it nevertheless desires to (i) assure the continued loyalty,
cooperation and services of certain key officers and employees of the Bank if
one should occur, and (ii) provide for those individuals to receive compensation
under certain circumstances in connection with a change of control, if one
should occur.
2. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following respective meanings:
(a) A "Change in Control" shall have occurred if:
(i) the Company is merged or consolidated with another
entity and as a result thereof less than seventy-five percent (75%) of
the outstanding voting securities of the surviving or resulting entity
shall then be owned in the aggregate by the former shareholders of the
Company; or
(ii) as a result of, or in connection with, any tender
offer or exchange offer, merger or other business combination, or sale
or other disposition of assets, or any combination of the foregoing
transactions, the individuals who constitute the Board of Directors of
the Company before any such transaction shall not constitute a majority
of the board of directors of the surviving or resulting entity; or
(iii) a tender offer or exchange offer for the ownership
of securities of the Company representing over twenty-five percent (25%)
of the combined voting power of the Company's then outstanding voting
securities is made and consummated; or
(iv) any "person," including a "group" within the meaning
of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,
but excluding any employee stock ownership plan or similar employee
benefit plan of the Company or the Bank, is or becomes, directly or
indirectly, the beneficial owner of securities of the Company
representing over twenty-five percent (25%) of the combined voting power
of the Company's then outstanding voting securities; or
(v) the Company transfers substantially all of its assets
to another corporation that is not a wholly-owned subsidiary of the
Company.
(b) "Material Change" means any action by the Successor or the
Company during the Transition Period, without Employee's express written
consent, that has the effect of: (i) downgrading Employee's title, or reducing
the nature or scope of Employee's authority and prerogative, or materially
increasing the nature or scope of his responsibilities and duties, from those
applicable to him immediately prior thereto; or (ii) reducing the base salary
payable to Employee from that payable to him by the Company immediately prior
thereto; or (iii) failing to provide Employee with a package of fringe benefits
that, though one or more elements may vary from those in effect immediately
prior thereto, is substantially comparable to such fringe benefits; or (iv)
changing the location of Employee's principal place of employment to a location
that is outside the general metropolitan area of Syracuse, New York.
(c) "Severance Amount" means the obligation of the Successor to
pay and continue Employee's full salary, bonus and benefits set forth in Section
3 hereof.
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(d) "Successor" means any successor to the assets, rights or
business of the Company or the Bank as a result of a Change in Control,
including without limitation the Company and the Bank if either of them is the
surviving or resulting entity of the Change in Control.
(e) "Transition Period" means the time period beginning with the
agreement for or announcement of a proposed Change in Control and ending
eighteen (18) months following the effective date of any Change in Control.
3. PAYMENT OF SEVERANCE AMOUNT.
(a) If, during the term of Employee's employment as an officer of
the Bank, there shall occur a Change in Control, and during the Transition
Period Employee's employment with the Successor terminates for any reason, then,
subject to the qualifications set forth in Section 4 hereof, the Successor shall
be obligated to pay and continue Employee's full salary, bonus and benefits (to
the extent that Employee's continued participation is possible under the general
terms and provisions of such plans and programs) as were in effect immediately
preceding the Change of Control, for a period of eighteen (18) months following
the effective date of termination of employment.
(b) Employee shall not be required to mitigate the Severance
Amount by seeking other employment or otherwise, nor shall the Severance Amount
be reduced or offset by any compensation earned by Employee as the result of his
employment by another employer subsequent to the effective date of termination
of his employment with the Successor.
4. EFFECT OF CERTAIN TERMINATIONS. Notwithstanding Section 3 hereof,
Employee shall not be entitled to receive, and the Successor shall have no
obligation to pay, the Severance Amount if, during the Transition Period:
(a) Employee voluntary terminates his employment with the
Company, the Bank or Successor. However, notwithstanding any resignation or
other seemingly voluntary departure, Employee's termination of employment shall
not be deemed voluntary for purposes of this Agreement if Employee's employment
terminates in consequence of a Material Change. In such case, Employee shall be
entitled to receive, and the Successor shall be obligated to pay, the Severance
Amount.
(b) The Company, the Bank or Successor terminates Employee's
employment for any of the following reasons: (i) Employee's continuing refusal
to perform such services (other than services constituting a Material Change) as
may reasonably be assigned to him by the Successor; or (ii) Employee's willful
misconduct or gross negligence in the performance of his employment duties; or
(iii) Employee's breach of his duty of loyalty to, or acts of unfair competition
with, the Successor; or (iv) Employee's conviction of any crime or offense
involving money, property or personnel of the Successor, or of any other crime
which constitutes a felony; or (v) Employee's illegal use, possession or being
under the influence of any narcotic, controlled substance or alcoholic beverage
while at work; or (vi) any conduct by Employee that, under applicable laws and
regulations, disqualifies him from serving as an officer or employee of the
Bank.
(c) His employment terminates by reason of Employee's death,
total disability, or normal retirement at or after age 65.
5. PAYMENT OF ACCRUED SALARY, ETC. This Agreement shall not affect
Employee's right to receive all earned but unpaid salary, accrued but unpaid
vacation pay, and submitted but outstanding travel or other expenses due and
owing from the Successor on the effective date of the termination of his
employment, or any incentive compensation earned but unpaid prior to or
coincidental with such date, all of which shall be paid by the Successor to
Employee in accordance with the terms of such obligations.
6. WITHHOLDING OF TAXES. The Successor may withhold from the
Severance Amount all Federal, state, city or other taxes as may be required
under any law, governmental regulation or ruling.
7. NOT AN EMPLOYMENT AGREEMENT. Nothing contained in this Agreement
is intended, nor shall it be deemed, to give Employee any rights (or impose any
obligations) to continued employment by the Company, the Bank or the Successor,
or give the Company, the Bank or the Successor any rights (or impose any
obligations) for the continued performance of duties by Employee, or otherwise
alter Employee's status as an employee at will.
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8. AMENDMENT. This Agreement sets forth the entire understanding of the
parties with respect to its subject matter, and may not be modified or
terminated except upon written amendment executed by Employee, the Company and
the Bank (or, if subsequent to the Change in Control, by Employee and the
Successor).
9. NO ASSIGNMENT. Employee's right to receive the Severance Amount
hereunder shall not be assignable or transferable, whether by pledge, creation
of a security interest or otherwise, other than a transfer by will or by the
laws of descent or distribution. In the event of any attempted assignment or
transfer contrary to this Section the Successor shall have no liability to pay
the Severance Amount or any portion thereof so attempted to be assigned or
transferred.
10. BENEFIT. This Agreement shall be binding upon, and shall inure to
the benefit of and be enforceable by, Employee and his personal or legal
representatives, executors, administrators, heirs and distributees. This
Agreement shall be binding upon, and shall inure to the benefit of and be
enforceable by, the Company, the Successor and their respective successors and
assigns.
11. NOTICES. Notices and all other communications under this Agreement
shall be in writing and shall be deemed given when personally delivered or when
mailed by United States registered or certified mail, return receipt requested,
postage prepaid, addressed to the Company or to the Successor (as the case may
be) at the address set forth in the first paragraph of this Agreement, and
addressed to Employee at his residence address as shown on the records of the
Company or the Successor (as the case may be), or to such other address as
either party may furnish to the other by like notice; provided, however, that
notices of changes of address shall be effective only upon receipt.
12. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely within such State.
13. SEVERABILITY. If a court of competent jurisdiction determines that
any provision of this Agreement is invalid or unenforceable, then the invalidity
or unenforceability of that provision shall not affect the validity or
enforceability of any other provision of this Agreement, and all other
provisions shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the day and year first above written.
SKANEATELES BANCORP, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx,
Chairman, President and CEO
SKANEATELES SAVINGS BANK
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx,
Chairman, President and CEO
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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