EMPLOYMENT AGREEMENT
EXHIBIT 10.1
This sets forth the terms of the Employment Agreement made as of April 4, 2008 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) XXXXX X. XXXXXXXX, an individual currently residing
at Manlius, New York (“Employee”).
WITNESSETH
IN CONSIDERATION of the promises and mutual agreements and covenants contained herein, and
other good and valuable consideration, the parties agree as follows:
1. Employment.
(a) Term. Employer shall employ Employee, and Employee shall serve, as Executive Vice
President and Chief Financial Officer, for CBSI and CBNA for a term commencing on January 1, 2008
and ending on December 31, 2010 (“Period of Employment”), subject to termination as provided in
paragraph 3 hereof.
(b) Salary. During the Period of Employment, Employer shall pay Employee a base
salary at the annual rate of not less than $310,000 (“Base Salary”). Employee’s Base Salary for
calendar years after 2008 shall be reviewed and adjusted annually in accordance with Employer’s
regular practice for executive employees. Employee’s Base Salary is payable in accordance with
Employer’s regular payroll practices for executive employees.
(c) Incentive Compensation. During the Period of Employment, Employee shall be
entitled to annual incentive compensation as a Tier 2 Executive of the Employer pursuant to the
terms of the Management Incentive Plan, which has been approved by the Board of Directors of
Employer to cover Employee and other key personnel of Employer, as well as other incentive plans
that may be established by Employer and that are applicable to Employer’s executives of similar
salary tier to Employee. Upon termination of Employee’s employment pursuant to subparagraph 3(a),
3(b), 3(c) or 6, Employee shall be entitled to a pro rata portion (based on Employee’s complete
months of employment in the applicable year) of the annual incentive awards that are payable with
respect to the year during which the termination occurs or, if the annual awards for such year are
not determinable at the termination date, then the immediately prior year’s awards shall be used to
determine such pro rata portion.
2. Duties during the Period of Employment. As Employer’s Executive Vice President and
Chief Financial Officer, Employee shall have full responsibility, subject to the control of
Employer’s President and Chief Executive Officer and/or the authorized designee of Employer’s Board
of Directors, for the supervision of all assigned aspects of Employer’s business and operations
including all matters related to finance, accounting, investor relations, and financial services
subsidiaries, and the discharge of such other duties and responsibilities to Employer, not
inconsistent with such position, as may from time to time be reasonably assigned to Employee by
Employer’s President and Chief Executive Officer, or the authorized designee of Employer’s Board of
Directors. Employee shall report to the Employer’s President and Chief Executive Officer.
Employee shall devote Employee’s best efforts to the affairs of Employer, serve faithfully and to
the best of Employee’s ability and devote all of Employee’s working time and attention, knowledge,
experience and skill to the business of Employer, except that
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Employee may affiliate with professional associations, and business, civic and charitable
organizations, provided that such services and affiliations do not unreasonably interfere with the
performance of Employee’s duties under this Agreement. Employee shall serve on the Board of
Directors of, or as an officer of Employer’s affiliates, without additional compensation if
requested to do so by the Board of Directors of Employer. Employee shall receive only the
compensation and other benefits described in this Agreement for Employee’s services to affiliates
of Employer.
3. Termination. Employee’s employment by Employer shall be subject to termination as
follows:
(a) Expiration of the Term. This Agreement shall terminate automatically at the
expiration of the Period of Employment unless the parties enter into a written agreement extending
Employee’s employment, except for the continuing obligations of the parties as specified hereunder.
(b) Termination Upon Death. This Agreement shall terminate upon Employee’s death. In
the event this Agreement is terminated as a result of Employee’s death, Employer shall continue
payments of Employee’s Base Salary for a period of 90 days following Employee’s death to the
beneficiary designated by Employee on the “Beneficiary Designation Form” attached to this Agreement
as Appendix A. Any restrictions on shares of CBSI stock previously granted to Employee shall be
waived as of the date of death and Employee’s beneficiary shall be free to dispose of any
restricted stock previously granted to Employee by Employer. Additionally, Employer shall treat as
immediately exercisable all unexpired stock options issued by Employer and held by Employee that
are not exercisable or that have not been exercised, so as to permit the Beneficiary to purchase
the balance of Community Bank System,
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Inc. (“CBSI”) Stock not yet purchased pursuant to said options until the end of the full
exercise period provided in the original grant of the option right, determined without regard to
Employee’s death or termination of employment.
(c) Termination Upon Disability. Employer may terminate this Agreement upon
Employee’s disability. For the purpose of this Agreement, Employee’s inability to perform
substantially all of Employee’s duties under this Agreement by reason of physical or mental illness
or injury for a period of 26 successive weeks (the “Disability Period”) shall constitute
disability. The determination of disability shall be made by a physician selected by Employer and
a physician selected by Employee; provided, however, that if the two physicians so selected shall
disagree, the determination of disability shall be submitted to arbitration in accordance with the
rules of the American Arbitration Association and the decision of the arbitrator shall be binding
and conclusive on Employee and Employer. During the Disability Period, Employee shall be entitled
to 100% of Employee’s Base Salary otherwise payable during that period, reduced by all other
Employer-provided income replacement benefits to which Employee may be entitled for the Disability
Period on account of such disability (including, but not limited to, benefits provided under any
disability insurance policy or program, worker’s compensation law, or any other benefit program or
arrangement). Upon termination pursuant to this disability provision, any restrictions on shares
of CBSI stock previously granted to Employee shall be waived and Employee shall be free to dispose
of any restricted stock granted to Employee. Additionally, Employer shall treat as immediately
exercisable all unexpired stock options issued by Employer and held by Employee that are not
exercisable or that have not been exercised, so as to permit the Employee to purchase the balance
of CBSI Stock not yet purchased pursuant to said options until the end of the full exercise period
provided in the original grant of
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the option right, determined without regard to Employee’s disability or termination of
employment.
(d) Termination for Cause. Employer may terminate Employee’s employment immediately
for “cause” by written notice to Employee. For purposes of this Agreement, a termination shall be
for “cause” if the termination results from any of the following events:
(i) The willful breach of any material provision of this Agreement, which breach Employee
shall have failed to cure within thirty (30) days following Employer’s written notice to Employee
specifying the nature of the breach;
(ii) Any documented misconduct by Employee as an executive or director of Employer, or any
subsidiary or affiliate of Employer for which Employee is performing services hereunder, which is
material and adverse to the interests, monetary or otherwise, of Employer or any subsidiary or
affiliate of Employer;
(iii) Unreasonable neglect or refusal to perform the duties assigned to Employee under or
pursuant to this Agreement, unless cured within thirty (30) days following Employer’s written
notice to Employee specifying the nature of the neglect or refusal;
(iv) Conviction of a crime involving any act of dishonesty, acts of moral turpitude, or the
commission of a felony;
(v) Adjudication as a bankrupt, which adjudication has not been contested in good faith,
unless bankruptcy is caused directly by Employer’s unexcused failure to perform its obligations
under this Agreement;
(vi) Documented failure to follow the reasonable, written instructions of the Board of
Directors of Employer or the Employer’s President and Chief
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Executive Officer, provided that the instructions do not require Employee to engage in
unlawful conduct; or
(vii) A willful violation of a material rule or regulation of the Office of the Comptroller of
the Currency or of any other regulatory agency governing Employer or any subsidiary or affiliate of
Employer.
Notwithstanding any other term or provision of this Agreement to the contrary, if Employee’s
employment is terminated for cause, Employee shall forfeit all rights to payments and benefits
otherwise provided pursuant to this Agreement; provided, however, that Base Salary shall be paid
through the date of termination.
(e) Termination For Reasons Other Than Cause. In the event Employer terminates
Employee’s employment prior to December 31, 2010 for reasons other than “cause” (as defined in
paragraph 3(d)), then Employee shall be entitled to a severance benefit equal to the greater of (i)
the sum of Employee’s annual Base Salary in effect at the time of termination and the aggregate sum
of all payments made to Employee during the 12 months preceding Employee’s termination pursuant to
the Management Incentive Plan (or equivalent successor plan), or (ii) amounts of Base Salary and
expected Management Incentive Plan ( or equivalent successor plan) payments that otherwise would
have been payable through the balance of the unexpired term of this Agreement. Unless Employee is a
“specified employee” (as determined in accordance with Internal Revenue Code Section 409A), the
benefit payable pursuant to this paragraph 3(e) shall be payable in equal biweekly installments
over the 12 month period that begins on the first day of the month following Employee’s
termination. If Employee is a “specified employee” (as determined in accordance with Internal
Revenue Code Section 409A), then installment payments during the first six months of the 12 month
installment period
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shall be limited to the extent required by Internal Revenue Code Section 409A, annual unpaid
installment amounts shall be paid immediately after such six-month period and installment payments
due during the remaining six months shall be paid as scheduled.
In addition to the cash benefit described in the foregoing of this paragraph 3(e), Employer
shall: (iii) waive all restrictions on all restricted stock previously granted to Employee and
permit Employee to dispose of any restricted stock; and (iv) treat as immediately exercisable all
unexpired stock options held by Employee that are not exercisable or that have not been exercised,
so as to permit Employee to purchase the balance of CBSI Stock not yet purchased pursuant to said
options until the end of the full exercise period provided in the original grant of the option
right determined without regard to Employee’s termination of employment.
Notwithstanding the foregoing, if Employer terminates Employee for reasons other than cause
and under circumstances that entitle Employee to payments and benefits under paragraph 6 of this
Agreement (regarding “Change of Control”) then amounts payable under clauses (i) or (ii) of this
paragraph 3(e) shall be reduced by any payments made to Employee under paragraphs 6(a)(i) and (ii).
(f) Expiration of Term Without Renewal. In the event that Employee’s employment
ends on December 31, 2010 solely because Employer chooses not to renew or extend this Agreement
beyond December 31, 2010 for reasons other than cause, then Employee shall be entitled to a
severance benefit equal to the sum of (i) 175 percent of Employee’s annual Base Salary in effect at
the time of termination, and (ii) the aggregate sum of all payments made to Employee during 2010
pursuant to the Management Incentive Plan (or equivalent successor plan). The benefit payable under
this paragraph 3(f) shall be reduced by any
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amounts payable to Employee under paragraphs 6(a)(i) and (ii). Any remaining benefit
described in this paragraph 3(f) shall be paid on or before March 15, 2011.
(g) Employer shall have the right of first refusal to purchase from Employee or Employee’s
estate, shares of CBSI stock acquired pursuant to the exercise of stock options after the date of
Employee’s termination of employment for any reason, in the event Employee or Employee’s estate
elects to dispose or transfer such acquired shares. Such right of first refusal shall expire ten
years from the date of termination. Employee (or Employee’s estate, as the case may be) shall
provide Employer with not less than 30 days’ advance written notice of any disposition or transfer.
If Employer chooses to exercise its right of first refusal, it shall do so by written notice
within 15 days of receipt of notice of disposition or transfer. The purchase price per share to be
paid by Employer upon any such exercise shall equal the closing price per share of shares of CBSI
stock on the trading day that immediately precedes the date of exercise.
4. Fringe Benefits.
(a) Benefit Plans. During the Period of Employment, Employee shall be eligible to
participate in any employee pension benefit plans (as that term is defined under Section 3(2) of
the Employee Retirement Income Security Act of 1974, as amended), Employer-paid group life
insurance plans, medical plans, dental plans, long-term disability plans, business travel insurance
programs and other fringe benefit programs maintained by Employer for the benefit of (or which are
applicable to) its executive employees. Participation in any of Employer’s benefit plans and
programs shall be based on, and subject to satisfaction of, the eligibility requirements and other
conditions of such plans and programs. Employer may require Employee to submit to an annual
physical, to be performed by a physician of his own choosing. Employee shall be reimbursed for
related expenses not covered by Employer’s health insurance
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plan, or any other plan in which Employee is enrolled. Employee shall not be eligible to
participate in Employer’s Severance Pay Plan maintained for employees not covered by employment
agreements.
(b) Expenses. Upon submission to Employer of vouchers or other required
documentation, Employee shall be reimbursed for (or Employer shall pay directly) Employee’s actual
out-of-pocket travel and other expenses reasonably incurred and paid by Employee in connection with
Employee’s duties hereunder. Reimbursable expenses must be submitted to the President and Chief
Executive Officer of Employer, or the President and Chief Executive Officer’s designee, for review
on no less than a quarterly basis.
(c) Other Benefits. During the Period of Employment, Employee also shall be entitled
to receive the following benefits:
(i) Paid time-off of twenty-one (21) days each calendar year (with no carry over of unused
time to a subsequent year) and any holidays that may be provided to all employees of Employer in
accordance with Employer’s holiday policy;
(ii) Reasonable sick leave;
(iii) Reimbursement of membership fees and dues (but not personal expenses) for up to two club
memberships and other appropriate professional associations, subject to the approval of the
President and Chief Executive Officer of Employer. Although it is contemplated that the membership
shall be utilized for promotion of Employer’s business interests, in the event that any part of any
membership shall be treated as taxable compensation to Employee, Employer shall reimburse Employee
for any federal, state or local income tax owed by Employee, including any such taxes owed as a
result of any reimbursement under this subparagraph, in connection with such membership.
Reimbursements shall be made
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on or before the last day of Employee’s taxable year following the taxable year in which the
expense was incurred;
(iv) The use of an Employer-owned cellular telephone and all Employer related business charges
incurred in connection with the use of such telephone; and
(v) The use of an Employer-owned or Employer-leased late model automobile, the selection and
replacement of which shall be subject to the approval of the President and Chief Executive Officer
of Employer.
(d) Supplemental Retirement Benefits. The terms and conditions for the payment of
supplemental retirement benefits are set forth in a separate written agreement between the parties.
5. Restricted Stock and Stock Options.
Employer shall cause the Compensation Committee of the Board of Directors of Employer to
review whether Employee should be granted additional shares of restricted stock and/or options to
purchase shares of common stock of CBSI. Such review may be conducted pursuant to the terms of the
Community Bank System, Inc. 2004 Long-Term Incentive Compensation Program, a successor plan, or
independently, as the Compensation Committee shall determine. Reviews shall be conducted no less
frequently than annually.
6. Change of Control.
(a) If Employee’s employment with Employer (as an employee) shall cease for any reason,
including Employee’s voluntary termination for “good reason” (as defined in paragraph 6(d) below),
but not including Employee’s termination for “cause”(as described in paragraph 3 (d)) or Employee’s
voluntary termination without “good reason”, within two (2) years following a “Change of Control”
that occurs during the Period of Employment, then:
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(i) Employer shall pay to the Employee the greater of (A) 300 percent of the sum of the annual
Employee’s Base Salary in effect at the time of Employee’s termination and the aggregate sum of all
payments made to Employee during the twelve (12) months preceding Employee’s termination pursuant
to the Management Incentive Plan (or equivalent successor plan), or (B) amounts of Base salary and
expected payments under the Management Incentive Plan (or equivalent successor plan) that otherwise
would have been payable through the balance of the unexpired term of this Agreement. Unless
Employee is a “specified employee “(as determined in accordance with Internal Revenue Code Section
409A), the amount determined pursuant to this paragraph 6(a)(i) shall be payable in a single
lump-sum payment within sixty (60) days following Employee’s termination. If Employee is a
“specified employee “(as determined in accordance with Internal Revenue Code Section 409A), then
the single lump-sum payment shall be made on the first day of the seventh month following
Employee’s termination.
(ii) Subject to the applicable limitations of Internal Revenue Code Section 409A that apply if
Employee is a “specified employee “(as determined in accordance with Internal Revenue Code Section
409A), Employer shall provide Employee with fringe benefits, or the cash equivalents of such
benefits, identical to those described in paragraph 4(a) for a period of thirty-six (36) months
following Employee’s termination. To the extent the benefits provided to Employee in this
paragraph 6(a)(ii) are deemed taxable benefits, Employer shall reimburse Employee for taxes owed by
Employee on the benefits and tax reimbursement. The reimbursement shall be made by the end of
Employee’s taxable year next following the taxable year in which Employee remits the related taxes.
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(iii) Employer shall treat as immediately exercisable all unexpired stock options issued by
Employer and held by Employee that are not otherwise exercisable or that have not been exercised so
as to permit Employee to purchase the balance of CBSI Stock not yet purchased pursuant to said
options until the end of the full exercise period provided in the original grant of the option
right, determined without regard to Employee’s termination of employment.
(iv) Employer shall waive all restrictions on any shares restricted stock granted to Employee
and permit Employee to dispose of such stock.
(b) Notwithstanding any provision of this Agreement to the contrary, and except as provided
in the last sentence of this paragraph 6(b), in the event that any payment or benefit received or
to be received by the Employee in connection with a Change of Control (whether pursuant to the
terms of this Agreement or any other plan, arrangement or agreement)(all such payments and benefits
being hereinafter called “Total Benefits”) would be subject (in whole or in part) to the excise tax
imposed pursuant to Internal Revenue Code Section 4999, then the cash severance payments provided
in this Agreement shall first be reduced, and the other payments and benefits hereunder shall
thereafter be reduced, to the extent necessary so that no portion of the Total Benefits will be
subject to such excise tax, but only if (i) is greater than or equal to (ii), where (i) equals the
reduced amount of such Total Benefits minus the aggregate amount of federal, state and local income
taxes on such reduced Total Benefits, and (ii) equals the unreduced amount of such Total Benefits
minus the sum of (A) the aggregate amount of federal, state and local income taxes on such Total
Benefits, and (B) the amount of excise tax to which the Employee would be subject in respect of
such unreduced Total Benefits. Notwithstanding the foregoing, and although Employee shall not have
a legally binding right to any such payment,
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the Board of Directors of Employer shall have the sole discretion to waive the limitations
described in this paragraph 6(b) and/or to increase the amounts payable pursuant to this paragraph
6 to help cover some or all of the taxes payable by Employee as a result of the receipt of
unreduced payments and benefits pursuant to this Agreement.
(c) For purposes of this paragraph 6, a “Change of Control” shall be deemed to have occurred
if:
(i) any “person,” including a “group” as determined in accordance with the Section 13(d)(3) of
the Securities Exchange Act of 1934 (“Exchange Act”), is or becomes the beneficial owner, directly
or indirectly, of securities of Employer representing 30% or more of the combined voting power of
Employer’s then outstanding securities;
(ii) As a result of, or in connection with, any tender offer or exchange offer, merger or
other business combination (a “Transaction”), the persons who were directors of Employer before the
Transaction shall cease to constitute a majority of the Board of Directors of Employer or any
successor to Employer;
(iii) Employer is merged or consolidated with another corporation and as a result of the
merger or consolidation less than 70% of the outstanding voting securities of the surviving or
resulting corporation shall then be owned in the aggregate by the former stockholders of Employer,
other than (A) affiliates within the meaning of the Exchange Act, or (B) any party to the merger or
consolidation;
(iv) A tender offer or exchange offer is made and consummated for the ownership of securities
of Employer representing 30% or more of the combined voting power of Employer’s then outstanding
voting securities; or
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(v) Employer transfers substantially all of its assets to another corporation, which is not
controlled by Employer.
(d) For purposes of this paragraph 6, “good reason” shall mean action taken by Employer that
results in:
(i) An involuntary and material adverse change in Employee’s authority, duties,
responsibilities, or base compensation;
(ii) An involuntary relocation of the office from which Employee is expected to perform his
duties; or
(iii) A material breach of this
Agreement.
Employee must provide notice to Employer of the existence of a condition described in (i), (ii) or
(iii) above within thirty (30) days of the initial existence of the condition, upon the notice of
which Employer shall have thirty (30) days thereafter in which to remedy the condition.
7. Withholding. Employer shall deduct and withhold from compensation and benefits
provided under this Agreement all required income and employment taxes and any other similar sums
required by law to be withheld.
8. Covenants.
(a) Confidentiality. Employee shall not, without the prior written consent of
Employer, disclose or use in any way, either during his employment by Employer or thereafter,
except as required in the course of his employment by Employer, any confidential business or
technical information or trade secret acquired in the course of Employee’s employment by Employer.
Employee acknowledges and agrees that it would be difficult to fully compensate Employer for
damages resulting from the breach or threatened breach of the foregoing provision and, accordingly,
that Employer shall be entitled to temporary preliminary
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injunctions and permanent injunctions to enforce such provision. This provision with respect
to injunctive relief shall not, however, diminish Employer’s right to claim and recover damages.
Employee covenants to use his best efforts to prevent the publication or disclosure of any trade
secret or any confidential information that is not in the public domain concerning the business or
finances of Employer or Employer’s affiliates, or any of its or their dealings, transactions or
affairs which may come to Employee’s knowledge in the pursuance of his duties or employment.
(b) No Competition. Employee’s employment is subject to the condition that during the
term of his employment hereunder and for the period specified in paragraph 8(c) below, Employee
shall not, directly or indirectly, own, manage, operate, control or participate in the ownership,
management, operation or control of, or be connected as an officer, employee, partner, director,
individual proprietor, lender, consultant or otherwise with, or have any financial interest in, or
aid or assist anyone else in the conduct of, any entity or business (a “Competitive Operation”)
which competes in the banking industry or with any other business conducted by Employer or by any
group, affiliate, division or subsidiary of Employer in the states of New York or Pennsylvania.
Employee shall keep Employer fully advised as to any activity, interest, or investment Employee may
have in any way related to the banking industry. It is understood and agreed that, for the
purposes of the foregoing provisions of this paragraph, (i) no business shall be deemed to be a
business conducted by Employer or any group, division, affiliate or subsidiary of Employer unless
5% or more of Employer’s consolidated gross sales or operating revenues is derived from, or 5% or
more of Employer’s consolidated assets are devoted to, such business; (ii) no business conducted by
any entity by which Employee is employed or in which he is interested or with which he is connected
or associated shall be deemed competitive with any business conducted by Employer or any group,
division, affiliate or subsidiary of
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Employer unless it is one from which 2% or more of its consolidated gross sales or operating
revenues is derived, or to which 2% or more of its consolidated assets are devoted; and (iii) no
business which is conducted by Employer at the Date of Termination and which subsequently is sold
by Employer shall, after such sale, be deemed to be a Competitive Operation within the meaning of
this paragraph. Ownership of not more than 5% of the voting stock of any publicly held corporation
shall not constitute a violation of this paragraph.
(c) Non-Competition Period. The “non-competition period” shall begin on January 1,
2008 and shall end thirty-six (36) months after the Employee’s termination of employment; provided,
however, that the “non-competition period” shall end on the date Employee’s employment ends in the
event of Employee’s termination for “good reason” (as defined in paragraph 6(d)), or Employee’s
termination without “cause” (as defined in paragraph 3(d)), within two (2) years following a Change
of Control that occurs during the Period of Employment .
(d) Termination of Payments. Upon the breach by Employee of any covenant under this
paragraph 8, Employer shall cease all payments to Employee and may offset immediately any and all
amounts payable to Employee under this Agreement against any damages to which Employer is legally
entitled in addition to any and all other remedies available to Employer under the law or in
equity.
9. Notices. Any notice which may be given hereunder shall be sufficient if in writing
and mailed by overnight mail, or by certified mail, return receipt requested, to Employee at his
residence and to Employer at 0000 Xxxxxxxxxx Xxxxxxx, Xxxxxx, Xxx Xxxx 00000, or at such other
addresses as either Employee or Employer may, by similar notice, designate.
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10. Rules, Regulations and Policies. Employee shall abide by and comply in all
material respects with all of the rules, regulations, and policies of Employer that may be in
effect and amended from time to time, including without limitation (i) Employer’s policy of strict
adherence to, and compliance with, any and all requirements of the banking, securities, and
antitrust laws and regulations, and (ii) Employer’s human resources, personnel and benefits
policies.
11. No Prior Restrictions. Employee affirms and represents that Employee is under no
obligations to any former employer or other third party which is in any way inconsistent with, or
which imposes any restriction upon, the employment of Employee by Employer, or Employee’s
undertakings under this Agreement.
12. Return of Employer’s Property. After Employee has received notice of termination
or at the end of the Period of Employment, whichever first occurs, Employee shall promptly return
to Employer all documents and other property in his possession belonging to Employer.
13. Construction and Severability. The invalidity of any one or more provisions of
this Agreement or any part thereof, all of which are inserted conditionally upon their being valid
in law, shall not affect the validity of any other provisions to this Agreement; and in the event
that one or more provisions contained herein shall be invalid, as determined by a court of
competent jurisdiction, the court shall have authority to modify such provision in a manner that
most closely reflects the intent of the parties and is valid. This Agreement shall be interpreted
and applied in all circumstances in a manner that is consistent with the intent of the parties that
amounts earned and payable pursuant to this Agreement shall not be subject to the premature income
recognition or adverse tax provisions of Internal Revenue Code Section 409A.
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Accordingly, notwithstanding any other term or provision of this Agreement to the contrary,
distribution of benefits payable following employee’s termination of employment shall commence as
of the date required by this Agreement or, if later, the earliest date permitted by Internal
Revenue Code Section 409A (generally six (6) months after termination, if Employee is a “specified
employee” within the meaning of Internal Revenue Code Section 409A).
14. Governing Law. This Agreement was executed and delivered in New York and shall be
construed and governed in accordance with the laws of the State of New York.
15. Assignability and Successors. This Agreement may not be assigned by Employee or
Employer, except that this Agreement shall be binding upon and shall inure to the benefit of the
successor of Employer through merger or corporate reorganization. Any attempted assignment in
violation of this paragraph 15 shall be null and void and of no effect,
16. Miscellaneous.
(a) This Agreement constitutes the entire understanding and agreement
between the parties with respect to the subject matter hereof and shall supersede all prior
understandings and agreements.
(b) This Agreement cannot be amended, modified, or supplemented in any respect, except by a
subsequent written agreement entered into by the parties hereto.
(c) The services to be performed by Employee are special and unique; it is agreed that any
breach of this Agreement by Employee shall entitle Employer (or any successor or assigns of
Employer), in addition to any other legal remedies available to it, to apply to any court of
competent jurisdiction to enjoin such breach.
(d) The provisions of paragraphs 6 and 8 hereof shall survive the termination of this
Agreement.
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17. Counterparts. This Agreement may be executed in counterparts (each of which
need not be executed by each of the parties), which together shall constitute one and the same
instrument.
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 Employee is the prevailing party
in a proceeding to collect payments due pursuant to this Agreement, Employer shall reimburse
Employee for reasonable attorneys’ fees incurred by Employee in connection with such proceeding.
Reimbursement shall be made on or before the last day of Employee’s taxable year following the
taxable year in which the expense was incurred. The foregoing right of reimbursement shall expire
on the fifth anniversary of Employee’s separation of Employment with Employer.
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The foregoing is established by the following signatures of the parties.
| COMMUNITY BANK SYSTEM, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Xxxx X. Xxxxxxxx | ||||
| President and Chief Executive Officer | ||||
| COMMUNITY BANK, N.A. |
||||
| By: | /s/ Xxxxxxxxxx X. Xxxxxx | |||
| Xxxxxxxxxx X. Xxxxxx | ||||
| Senior Vice President and Chief HR Officer | ||||
| /s/ Xxxxx X. Xxxxxxxx | ||||
| Xxxxx X. Xxxxxxxx | ||||
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