Contract
Exhibit
10.1
This
EMPLOYMENT AGREEMENT (the
"Agreement") made and entered into this 2nd
day of
January 2008, by and
between Xxxxx X. Xxxxxxxx ("Executive") and Xxxxxx National Bank, a national
banking corporation (“Corporation”).
W
I T N E
S S E T H T H A T :
WHEREAS,
Executive is the Regional
Market President of the Corporation;
WHEREAS,
the Corporation desires to
secure the continued employment of Executive, subject to the provisions of
this
Agreement; and
WHEREAS,
Executive is desirous of
entering into the Agreement for such periods and upon the terms and conditions
set forth herein;
NOW,
THEREFORE, in consideration of the
premises and mutual covenants and agreements hereinafter set forth, intending
to
be legally bound, the parties agree as follows:
1.
Employment;
Responsibilities and Duties.
(a)
The Corporation hereby agrees to employ Executive, and Executive hereby agrees
to serve as the Regional Market President of the Corporation. Executive shall
have such executive duties, responsibilities, and authority as shall be set
forth in the bylaws of the Corporation or as may otherwise be determined by
the
Corporation.
(b)
Executive shall diligently and conscientiously devote his full and exclusive
working time and best efforts to the performance of his responsibilities and
duties hereunder. During the Term of Employment, Executive shall not, without
the prior written consent of the President and Chief Executive Officer (the
“President”), render services as an employee, independent contractor, or
otherwise, whether or not compensated, to any person or entity other than the
Corporation or its affiliates; provided that Executive may, where involvement
in
such activities does not individually or in the aggregate significantly
interfere with the performance by Executive of his duties or violate the
provisions of section 4 hereof, (i) render services to charitable organizations,
(ii) manage his personal investments, and (iii) with the prior permission of
the
President, hold such other directorships or part-time academic appointments
or
have such other business affiliations as would otherwise be prohibited under
this section 1.
(c)
Executive shall at all times discharge his duties in consultation with, and
under the supervision of the Corporation’s Board of Directors. In the
performance of his duties, Executive shall make his own principal office in
such
place as the President and Executive may from time to time agree.
2.
Term of
Employment.
(a)
The term of this Agreement ("Term of Employment") shall be the period commencing
on January 2, 2008 (the "Commencement Date") and continuing through December
31,
2009 or until the Termination Date whichever occurs first. The Termination
Date
shall mean the earliest to occur of:
(i)
the death of Executive; or
(ii)
Executive's inability to perform his duties hereunder, as a result of physical
or mental disability of Executive, for a period of at least 26 consecutive
weeks
or for at least 26 weeks during any period of twelve consecutive months during
the Term of Employment, and, within thirty (30) days after written notice of
termination under this section 2(a)(ii) is thereafter given by the Corporation
the Executive has not returned to the full-time performance of the Executive’s
duties; or
(iii)
the discharge of Executive by the Corporation "for cause," which shall mean
one
or more of the following:
(A)
any willful or gross misconduct by Executive with respect to the business and
affairs of the Corporation, or with respect to any of its affiliates for which
Executive is assigned material responsibilities or duties;
(B)
the conviction of Executive of a felony (after the earlier of the expiration
of
any applicable appeal period without perfection of an appeal by Executive or
the
denial of any appeal as to which no further appeal or review is available to
Executive) whether or not committed in the course of his employment by the
Corporation;
(C)
personal dishonesty or breach of fiduciary duty to the Corporation that in
either case results or was intended to result in personal profit to the
Executive at the expense of the Corporation;
(D)
Executive's willful neglect, failure, or refusal to carry out his duties
hereunder in a reasonable manner (other than any such failure resulting from
disability or death or from termination by Executive for Good Reason, as
hereinafter defined) after a written demand for substantial performance is
delivered to Executive by the President that specifically identifies the manner
in which the Corporation believes that Executive has not substantially performed
his duties and Executive has not resumed substantial performance of his duties
on a continuous basis within thirty days of receiving such demand;
(E)
the breach by Executive of any representation or warranty in section 6(a) hereof
or of any agreement contained in section 1, 4, 5, or 6(b) hereof, which breach
is material and adverse to the Corporation or any of its affiliates for which
Executive is assigned material responsibilities or duties;
(F)
willful violation of any law, rule or regulations (other than traffic violations
or similar violations) or cease-and-desist order, court order, judgment or
supervisory agreement which violation is materially and demonstrably injurious
to the Corporation;
(G)
Executive, directly or indirectly, alone or as a member of a partnership, or
as
an officer, director, member or shareholder of any other entity, is engaged
in
or concerned with any pursuit that might conflict with the Corporation’s
business, or affect Executive’s ability to perform his duties or create an
appearance of a conflict; or
(iv)
Executive's resignation from his position as Regional Market President of the
Corporation other than for "Good Reason," as hereinafter defined; or
(v)
the termination of Executive's employment by the Corporation "without cause,"
at
any time, upon the thirtieth day following notice to Executive; or
(vi)
Executive's resignation for "Good Reason." "Good Reason" shall mean, without
Executive's express written consent, reassignment of Executive to a position
other than as Regional Market President of the Corporation other than for
"Cause," or a decrease in the amount or level of Executive's salary or benefits
from the amount or level established in section 3 hereof.
(b)
In the event that the Term of Employment shall be terminated for any reason
other than that set forth in section 2(a)(v) or 2(a)(vi) hereof, Executive
shall
be entitled to receive, upon the occurrence of any such event:
(i)
any salary (as hereinafter defined) payable pursuant to section 3(a)(i) hereof
which shall have accrued as of the Termination Date; and
(ii)
such rights as Executive shall have accrued as of the Termination Date under
the
terms of any plans or arrangements in which he participates pursuant to section
3(b) hereof, any right to reimbursement for expenses accrued as of the
Termination Date payable pursuant to section 3(g) hereof, and the right to
receive the cash equivalent of paid annual leave and sick leave accrued as
of
the Termination Date pursuant to section 3(c) hereof.
(c)
In the event that the Term of Employment shall be terminated for the reason
set
forth in section 2(a)(v) or 2(a)(vi) hereof, Executive shall be entitled to
receive:
(i)
any salary payable pursuant to section 3(a)(i) hereof which shall have accrued
as of the Termination Date, and, for the period commencing on the date
immediately following the Termination Date and ending upon the first anniversary
of the Termination Date, salary payable at the rate established pursuant to
section 3(a)(i) hereof, in a manner consistent with the normal payroll practices
of the Corporation with respect to executive personnel as presently in effect
or
as they may be modified by the Corporation from time to time; and
(ii)
the pro rata share of any bonuses or incentive up to the Termination Date to
which Executive is entitled; and
(iii)
such rights as Executive may have accrued as of the Termination Date under
the
terms of any plans or arrangements in which he participates pursuant to section
3(b) hereof, any right to reimbursement for expenses accrued as of the
Termination Date payable pursuant to section 3(g) hereof, and the right to
receive the cash equivalent of paid annual leave and sick leave accrued as
of
the Termination Date pursuant to section 3(c) hereof.
(d)
Six months prior to December 31, 2009, if the Executive remains in employment
with the Corporation at that time, the Executive and the Corporation will begin
discussions concerning an extension of the Term of Employment.
3.
Compensation. For
the services to be performed by Executive for the Corporation and its affiliates
under this Agreement, Executive shall be compensated in the following
manner:
(a)
Salary. During
the Term of Employment:
(i)
The Corporation shall pay Executive a salary which, on an annual basis, shall
be
$140,000.00 commencing on January 2, 2008. For fiscal years subsequent to the
Corporation’s 2008 fiscal year, if the Executive continues in employment with
the Corporation, the Corporation shall pay to the Executive as compensation
for
his services the amount which is set by the President, but in no event less
than
the above salary established for fiscal year 2008, unless Executive’s duties and
responsibilities are more limited or his time spent on his duties and
responsibilities is appreciably reduced. Salary shall be payable in
accordance with the normal payroll practices of the Corporation with respect
to
executive personnel as presently in effect or as they may be modified by the
Corporation from time to time.
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(ii)
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Executive
shall be entitled to incentive bonuses as may from time to time be
awarded
by the Board.
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(b)
Employee Benefit
Plans
or Arrangements. During the Term of Employment, Executive
shall be entitled to participate in all employee benefit plans of the
Corporation, as presently in effect or as they may be modified by the
Corporation from time to time, under such terms as may be typical for senior
management officers employed by the Corporation, including, without
limitation, plans providing retirement benefits, medical insurance, life
insurance and disability insurance, provided that there be no duplication of
such benefits as are provided under any other provision of this
Agreement.
(c)
Vacation and Sick
Leave. During the Term of Employment,
Executive
shall be entitled to paid annual vacation periods and sick leave in accordance
with the policies of the Corporation as in effect as of the Commencement Date
or
as may be modified by the Corporation from time to time as may be typical for
senior management officers employed by the Corporation, but in no event less
than four (4) weeks of paid vacation per year
(d)
Automobile. The
Corporation recognizes the Executive’s need for an automobile for business
purposes. The Corporation, therefore, shall provide the Executive
with an automobile, including all related maintenance, repairs, insurance and
other costs. The automobile and related costs shall be comparable to
those which the Corporation presently provides the Executive.
(e)
Club
Memberships. The Corporation recognizes Executive’s need for a
place to meet and entertain the community, customers and constituencies and
deems a country club membership as the most effective way to accomplish that
purpose. The Corporation therefore shall pay the dues for Executive’s
membership in the Onondaga Golf and Country Club, The Century Club, and for
Executive’s expenses incurred for business purposes and allowable under the
Corporation’s expense reimbursement policies.
(f)
Withholding. All
compensation to be paid to Executive hereunder shall be subject to required
withholding and other taxes.
(g)
Expenses. During
the Term of Employment, Executive shall be reimbursed for reasonable travel
and
other expenses incurred or paid by Executive in connection with the performance
of his services under this Agreement, upon presentation of an itemized account
of such expenses in any form required by the Corporation.
4.
Confidential Business
Information; Non-Competition.
(a)
Executive acknowledges that certain business methods, creative techniques,
and
technical data of the Corporation and its affiliates and the like are deemed
by
the Corporation to be and are in fact confidential business information of
the
Corporation or its affiliates or are entrusted to third parties. Such
confidential information includes but is not limited to procedures, methods,
sales relationships developed while in the service of the Corporation or its
affiliates, knowledge of customers and their requirements, marketing plans,
marketing information, studies, forecasts, and surveys, competitive analyses,
mailing and marketing lists, strategic plan, computer system, systems and
procedures including SOX compliance, new business proposals, lists of vendors,
consultants, and other persons who render service or provide material to the
Corporation or
affiliates,
and compositions, ideas, plans, and methods belonging to or related to the
affairs of the Corporation or affiliates. In this regard, the
Corporation asserts proprietary rights in all of its business information and
that of its affiliates except for such information as is clearly in the public
domain. Notwithstanding the foregoing, information that would be
generally known or available to persons skilled in Executive's fields shall
be
considered to be "clearly in the public domain" for the purposes of the
preceding sentence. Executive agrees that he will not disclose or
divulge to any third party, except as may be required by his duties hereunder,
by law, regulation, or order of a court or government authority, or as directed
by the Corporation, nor shall he use to the detriment of the Corporation or
its
affiliates or use in any business or on behalf of any business competitive
with
or substantially similar to any business of the Corporation or affiliates,
any
confidential business information obtained during the course of his employment
by the Corporation. The foregoing shall not be construed as
restricting Executive from disclosing such information to the employees of
the
Corporation or affiliates. On or before the Termination Date,
Executive shall promptly deliver to the Corporation any and all tangible,
confidential information in his possession.
(b)
Executive hereby agrees that from the Commencement Date until the first
anniversary of the Termination Date, Executive will not (i) interfere with
the
relationship of The Xxxxxx Corporation, the Corporation or affiliates with
any
of their employees, suppliers, agents, or representatives (including, without
limitation, causing or helping another business to hire any employee of The
Xxxxxx Corporation, the Corporation or affiliates), or (ii) directly or
indirectly divert or attempt to divert from The Xxxxxx Corporation, the
Corporation or affiliates any business in which any of them has been actively
engaged during the Term of Employment, nor interfere with the relationship
of
The Xxxxxx Corporation, the Corporation or affiliates with any of their
customers or prospective customers. In the event of termination of Executive’s
employment by Executive pursuant to section 2(a)(ii) or 2(A)(iv) or by the
Corporation pursuant to section 2(a)(iii), Executive agrees not to compete,
directly or indirectly, with The Xxxxxx Corporation, the Corporation or any
affiliate, subsidiary, or successor, as an employee, officer, director,
independent contractor, consultant or shareholder of any financial services
company or any other entity or person providing financial services, including
but not limited to lending, securities, brokerage, trust or insurance products
or services, which has an office or location that is located within fifty (50)
miles of an office of The Xxxxxx Corporation, for a period of one (1) year
from
the effective date of the termination of his employment.
(c)
Executive acknowledges and agrees that irreparable injury will result to the
Corporation in the event of a breach of any of the provisions of this section
4
(the "Designated Provisions") and that the Corporation will have no adequate
remedy at law with respect thereto. Accordingly, in the event of a material
breach of any Designated Provision, and in addition to any other legal or
equitable remedy the Corporation may have, the Corporation shall be entitled
to
the entry of a preliminary and permanent injunction (including, without
limitation, specific performance) by a court of competent jurisdiction in Otsego
County, New York, or elsewhere, to restrain the violation or breach thereof
by
Executive, and Executive submits to the jurisdiction of such court in any such
action.
(d)
It is the desire and intent of the parties that the provisions of this section
4
shall be enforced to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any particular provision of this section 4 shall be adjudicated
to be invalid or unenforceable, such provision shall be deemed amended to delete
therefrom the portion thus adjudicated to be invalid or unenforceable, such
deletion to apply only with respect to the operation of such provision in the
particular jurisdiction in which such adjudication is made. In addition, should
any court determine that the provisions of this section 4 shall be unenforceable
with respect to scope, duration, or geographic area, such court shall be
empowered to substitute, to the extent enforceable, provisions similar hereto
or
other provisions so as to provide to the Corporation, to the fullest extent
permitted by applicable law, the benefits intended by this section 4.
5.
Representations
and
Warranties.
(a)
Executive represents and warrants to the Corporation that his execution,
delivery, and performance of this Agreement will not result in or constitute
a
breach of or conflict with any term, covenant, condition, or provision of any
commitment, contract, or other agreement or instrument, including, without
limitation, any other employment agreement, to which Executive is or has been
a
party.
(b)
Executive shall indemnify, defend, and hold harmless the Corporation for, from,
and against any and all losses, claims, suits, damages, expenses, or
liabilities, including court costs and counsel fees, which the Corporation
has
incurred or to which the Corporation may become subject, insofar as such losses,
claims, suits, damages, expenses, liabilities, costs, or fees arise out of
or
are based upon any failure of any representation or warranty of Executive in
section 6(a) hereof to be true and correct when made.
6.
Notices.
All notices,
consents, waivers, or other communications which are required or
permitted hereunder shall be in writing and deemed to have been duly given
if
delivered personally or by messenger, transmitted by telex or telegram, by
express courier, or sent by registered or certified mail, return receipt
requested, postage prepaid. All communications shall be addressed to
the appropriate address of each party as follows:
If
to the
Corporation:
Xxxxxx
National Bank
000
Xxxx Xxxxxx
Xxxxxxx,
XX 00000
Attention: Chief
Financial Officer
If
to
Executive:
Xxxxx
X. Xxxxxxxx
0000
Xxxxxxxx Xxx
Xxxxxxx,
XX 00000
All
such
notices shall be deemed to have been given on the date delivered, transmitted,
or mailed in the manner provided above.
7.
Assignment. This
Agreement shall inure to the benefit of and shall be binding upon, the
Corporation, its successor or assigns. This Agreement may not be
assigned by the Executive.
8.
Governing
Law. This Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of New York, without giving
effect to the principles of conflict of law thereof. The parties
hereby designate Otsego County, New York to be the proper jurisdiction and venue
for any suit or action arising out of this Agreement. Each of the
parties consents to personal jurisdiction in such venue for such a proceeding
and agrees that it may be served with process in any action with respect to
this
Agreement or the transactions contemplated thereby by certified or registered
mail, return receipt requested, or to its registered agent for service of
process in the State of New York. Each of the parties irrevocably and
unconditionally waives and agrees, to the fullest extent permitted by law,
not
to plead any objection that it may now or hereafter have to the laying of venue
or the convenience of the forum of any action or claim with respect to this
Agreement or the transactions contemplated thereby brought in the courts
aforesaid.
9.
Entire
Agreement. This Agreement constitutes the entire understanding
between the Corporation and Executive relating to the subject matter
hereof. Any previous agreements or understandings between
the parties hereto or between Executive and the Corporation or any of its
affiliates regarding the subject matter hereof, including without limitation
the
terms and conditions of employment, compensation, benefits, retirement,
competition following employment, and the like, are merged into and superseded
by this Agreement. Neither this Agreement nor any provisions hereof
can be modified, changed, discharged, or terminated except by an instrument
in
writing signed by the party against whom any waiver, change, discharge, or
termination is sought.
10.
Illegality;
Severability.
(a)
Anything in this Agreement to the contrary notwithstanding, this Agreement
is
not intended and shall not be construed to require any payment to Executive
which would violate any federal or state statute or regulation, including
without limitation the "golden parachute payment regulations" of the Federal
Deposit Insurance Corporation codified to Part 359 of title 12, Code of Federal
Regulations.
(b)
If any provision or provisions of this Agreement shall be held to be invalid,
illegal, or unenforceable for any reason whatsoever:
(i)
the validity, legality, and enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of any section of this
Agreement containing any such provision held to be invalid, illegal, or
unenforceable) shall not in any way be affected or impaired thereby; and
(ii)
to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any section of this Agreement containing
any
such provisions held to be invalid, illegal, or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal, or unenforceable.
11.
Arbitration. Subject
to the right of each party to seek specific performance (which right shall
not
be subject to arbitration), if a dispute arises out of or related to this
Agreement, or the breach thereof, such dispute shall be referred to arbitration
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association ("AAA"). A dispute subject to the provisions of this
section will exist if either party notifies the other party in writing that
a
dispute subject to arbitration exists and states, with reasonable specificity,
the issue subject to arbitration (the "Arbitration Notice"). The
parties agree that, after the issuance of the Arbitration Notice, the parties
will try in good faith to resolve the dispute by mediation in
accordance
with the Commercial Rules of Arbitration of AAA between the date of the issuance
of the Arbitration Notice and the date the dispute is set for
arbitration. If the dispute is not settled by the date set for
arbitration, then any controversy or claim arising out of this Agreement or
the
breach hereof shall be resolved by binding arbitration and judgment upon any
award rendered by arbitrator(s) may be entered in a court having
jurisdiction. Any person serving as a mediator or arbitrator must
have at least ten years' experience in resolving commercial disputes through
arbitration. In the event any claim or dispute involves an amount in
excess of $100,000, either party may request that the matter be heard by a
panel
of three arbitrators; otherwise all matters subject to arbitration shall be
heard and resolved by a single arbitrator. The arbitrator shall have
the same power to compel the attendance of witnesses and to order the production
of documents or other materials and to enforce discovery as could be exercised
by a United States District Court judge sitting in the Northern District of
New
York. In the event of any arbitration, each party shall have a
reasonable right to conduct discovery to the same extent permitted by the
Federal Rules of Civil Procedure, provided that such discovery shall be
concluded within ninety days after the date the matter is set for
arbitration. In the event of any arbitration, the arbitrator or
arbitrators shall have the power to award reasonable attorney's fees to the
prevailing party. Any provision in this Agreement to the contrary
notwithstanding, this section shall be governed by the Federal Arbitration
Act
and the parties have entered into this Agreement pursuant to such Act.
12.
Costs of
Litigation. In
the event litigation is commenced to enforce any of the provisions hereof,
or to
obtain declaratory relief in connection with any of the provisions hereof,
the
prevailing party shall be entitled to recover reasonable attorney's
fees. In the event this Agreement is asserted in any litigation as a
defense to any liability, claim, demand, action, cause of action, or right
asserted in such litigation, the party prevailing on the issue of that defense
shall be entitled to recovery of reasonable attorney's fees.
13.
Affiliation. A
company will be deemed to be "affiliated"
with
the Corporation according to the definition of "Affiliate" set forth in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act
of
1934, as amended.
14.
Headings. The
section and subsection headings herein have been inserted for convenience of
reference only and shall in no way modify or restrict any of the terms or
provisions hereof.
IN
WITNESS WHEREOF, the parties hereto
executed or caused this Agreement to be executed as of the day and year first
above written.
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Xxxxxx
National Bank
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx
X. Xxxxxxx
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President
and Chief Executive Officer
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/s/ Xxxxx X. Bissacio
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Xxxxx
X. Xxxxxxxx
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