Exhibit 10(F)
SEPARATION AGREEMENT
AGREEMENT made this 11th day of March, 1997 between James H. Paul ("Paul"),
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Iroquois Bancorp, Inc. ("Iroquois") and Cayuga Bank ("Cayuga").
WHEREAS, Iroquois and Cayuga (collectively referred to as the "Company")
have employed Paul at their facilities in Auburn, New York; and
WHEREAS, the parties now wish to provide for the orderly dissolution of
Paul's relationship with Iroquois and Cayuga in a final, amicable, and mutually
beneficial manner; and
WHEREAS, the parties have had an adequate opportunity to consider the terms
of this Separation Agreement and to consult with legal counsel or other persons
about it;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Release of Claims - Paul. Simultaneously with the execution of this
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Separation Agreement, Paul and the Company each agree to execute releases, in
the forms attached as Exhibits "A" and "B", releasing and waiving certain claims
which they now have or may have against each other or against their officers,
directors, employees and other agents, or their related, affiliated or successor
corporations. As consideration for these releases and for the other promises
which Paul makes in this Separation Agreement, Iroquois and Cayuga agree to pay
Paul his base annual salary ($106,100) and to continue certain other employee
benefits which he has received until December 31, 1998, as more specifically
defined in this paragraph. Payments made under this agreement shall be subject
to all deductions required by law.
Paul will continue to receive the health, dental and life insurance
benefits he currently enjoys, subject to the terms and conditions of the
applicable policies and plan documents, as amended from time to time. Paul will
continue to participate in the Iroquois Bancorp Stock Purchase Incentive Plan,
the Iroquois Bancorp Section 401(k) Savings Plan, the Iroquois Bancorp Money
Purchase Pension Plan, the Iroquois Bancorp Employee Stock Ownership Plan, and
the Iroquois Bancorp Supplemental Retirement Plan through December 31, 1998,
subject to the terms and conditions of the applicable policies and plan
documents, as amended from time to time. Paul will be entitled to four weeks
paid vacation for 1997, and any unused vacation he has accumulated as of June
30, 1997 will be paid to him at his normal salary rate. Paul is not eligible to
participate in any other fringe benefit plans or receive any other form of
fringe benefits, including, without limitation, vacation, sick leave, or other
benefits providing for paid time-off, except as required by law. Paul also is
not eligible to participate in any bonus or incentive compensation plans for
1997, 1998, or beyond, and is not eligible to receive stock option grants under
the 1996 Stock Option Plan or any subsequent plan.
Paul acknowledges and agrees that the payments made to him under this
Separation Agreement exceed payments he otherwise would be entitled to receive
and that he is responsible for any income tax, whether federal, state or local,
owed as a result of these payments. Paul agrees to cooperate with Iroquois or
Cayuga to secure judicial or administrative approval of the general releases
that he has executed in their favor, should it be determined that such approval
is required to effectuate the release.
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2. Protection of Confidential and Proprietary Information.
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a. Paul recognizes and acknowledges that during his employment with
Iroquois and Cayuga, he received, had access to, and, in some cases, prepared
and created confidential and proprietary business information for the Company,
including, but not limited to, client and customer information, customer lists,
information about the Company's products, services, operation methods and
systems, personnel information, and other information not available to outside
parties, all of which are of substantial value to Iroquois and Cayuga in their
business.
b. Without the Company's express prior written consent, Paul agrees not to
use or cause to be used for his own benefit or for the benefit of any third
parties or to disclose to any third party in any manner, directly or indirectly,
any information of a confidential or proprietary nature acquired during his
employment or the subsequent period of salary continuance, except that
information which the Company has disclosed publicly.
c. Paul shall return to Iroquois and Cayuga either before or immediately
upon the termination of his employment any and all written information,
materials, or equipment that constitutes, contains, or relates in any way to the
Company's proprietary or confidential information and any other documents,
equipment, and materials of any kind relating in any way to the Company's
business which are or may be in his possession, custody, and control and which
are or may be the Company's property, whether confidential or not, including any
and all copies of such materials.
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d. Paul understands and agrees that if he discloses to third parties, uses
for his own benefit or for the benefit of third parties, or copies or makes
notes of any confidential and proprietary information at any time, except as may
be required by the performance of his duties, this conduct shall constitute a
breach of the confidence and trust bestowed upon him by the Company and he
expressly agrees that injunctive relief, in addition to any other remedies
provided by law or equity, shall be available to the Company to enforce this
agreement and redress its violation.
3. Covenant Not to Compete. During Paul's employment and the subsequent
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period of salary continuation provided to him by the terms of this Agreement,
Paul agrees that he shall not accept employment or self-employment with any
financial institution of any nature or type which provides services and products
that are the same or in any way similar to the services and products provided by
Iroquois and Cayuga. Paul further agrees that during his employment and the
subsequent period of salary continuation, he will not directly or indirectly
call on, solicit, or otherwise deal with any current account or customer of
Iroquois or Cayuga or any person or entity who may become an account or customer
of Iroquois or Cayuga during the subsequent salary continuation period.
4. Covenant Not to Sue. Paul agrees, promises, and covenants that neither
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he, nor any person, organization, or other entity acting on his behalf, will
file, charge, claim, sue, or cause or permit to be filed, charged, or claimed,
any action for damages or other relief (including injunctive, declaratory,
monetary relief or other) against Iroquois or Cayuga, their officers, directors,
employees, and other agents, or their
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related, affiliated, or successor companies concerning any matter occurring on
or before the date of this Separation Agreement or concerning Paul's employment
or his retirement and the termination of his employment in any way. Paul
further agrees to discontinue and withdraw with prejudice any and all claims,
charges or petitions which he may have filed against Iroquois or Cayuga, their
officers, directors, employees and other agents, or their related, affiliated,
or successor companies, with any administrative agency or bureau, any court or
any tribunal of any nature.
Iroquois and Cayuga agree that neither company, nor any person,
organization, or entity acting on their behalf, will file, charge, claim, sue or
cause or permit to be filed, charged or claimed, any action for damages or other
relief (including injunctive, declaratory, monetary relief or other) against
Paul, based on claims which either company has released under the terms of this
Agreement. Iroquois and Cayuga further agree to discontinue and withdraw with
prejudice any and all claims, charges or petitions which they may have filed
against Paul, or his agents or representatives, with any administrative agency
or bureau, any court or tribunal of any nature, based on claims which either
company has released under the terms of this Agreement.
5. Confidentiality. The parties agree that this Separation Agreement,
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including the releases and other documents executed as part of this Separation
Agreement, shall be treated as confidential and shall not be disclosed to any
other persons, other than Paul's present attorneys, accountants, or immediate
family, and the Board of Directors, executive staff, attorneys and accountants
of Iroquois and Cayuga unless required or compelled to do so by law or legal
process. Persons to
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whom information about this Separation Agreement is disclosed as provided in
this paragraph shall treat the information as confidential, and any further
disclosure by those persons shall be considered a breach of this confidentiality
provision. The parties agree that they will not publish, or cause or permit to
be published, any information which relates to the terms of this Separation
Agreement. The parties further agree that the terms of this Separation
Agreement shall not be admissible in any proceeding for any purpose other than
to secure its enforcement.
6. Non-Admission Clause. The parties agree that this Agreement is not and
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shall not be construed as an admission by Iroquois or Cayuga or any of their
directors, officers, employees or other agents, that Iroquois or Cayuga breached
any contractual obligations owed Paul or violated any federal, state or local
law concerning their treatment of Paul.
7. Miscellaneous Terms.
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a. Paul will retire and cease to be employed on or around June 1, 1997 or
earlier if the parties mutually agree. Paul also agrees to resign from any
assigned or elected position or office of the Iroquois or Cayuga Board of
Directors on that date. Paul states that he has no present interest in future
employment with Iroquois or Cayuga, or their related, affiliated and successor
companies and agrees that these organizations have no obligation now or in the
future, to rehire him or consider him for re-employment in any capacity.
b. This Separation Agreement is the entire agreement between the parties
and supersedes any and all prior agreements or understandings between them
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which pertain to its subject matter, including, without limitation, any prior
employment agreements between Paul and Iroquois or Cayuga. Paul specifically
releases and waives, without limitation of the foregoing waiver, any and all
benefits which he might be entitled to receive under the Iroquois Bancorp
Separation Plan.
c. This Separation Agreement can only be amended, modified, rescinded or
otherwise altered by a writing signed by the parties or their representatives.
d. This Separation Agreements shall be governed by the laws of the State
of New York.
e. Paul represents and warrants: (i) that he has been advised by the
Company to consult legal counsel and to consider the terms of this Separation
Agreement for at least twenty-one (21) days before signing it; and (ii) that he
has executed this Separation Agreement only after having had adequate time and
opportunity to consult with legal counsel about its terms. Paul further
represents and warrants that he has carefully read this Separation Agreement in
its entirety, that he understands the terms and conditions of the Agreement,
that he voluntarily assents to all of the terms and conditions it contains, and
that he is signing the agreement of his own free will.
f. This Separation Agreement shall not become effective until the eighth
day following Paul's execution of this Agreement, and Paul may, at any time
prior to the effective date, revoke this Separation Agreement by giving notice
of such
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revocation to Melissa Komanecky, Vice President and Director of Human Resources
for Cayuga Bank.
g. This Separation Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors, legal
representatives and assigns.
THE PARTIES RECOGNIZE THAT THEY ARE NOT LEGALLY REQUIRED TO ENTER INTO THIS
AGREEMENT AND FURTHER STATE THAT THEY HAVE HAD ADEQUATE OPPORTUNITY TO REVIEW
AND TO STUDY THE TERMS OF THIS SEPARATION AGREEMENT WITH COUNSEL OR OTHER
PERSONS AND HAVE DECIDED VOLUNTARILY TO ENTER THIS AGREEMENT.
IROQUOIS BANCORP, INC.
By: /s/Richard D. Callahan
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STATE OF NEW YORK )
COUNTY OF CAYUGA ) SS:
On March 11, 1997, before me personally appeared Richard Callahan, who,
being duly sworn, said that he is the President and Chief Executive Officer of
Iroquois Bancorp, Inc. the Corporation executing the above instrument, and that
he signed his name to this instrument with the authority of the Iroquois Bancorp
Board of Directors.
/s/Kathleen A. Manley
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Notary Public
CAYUGA BANK
KATHLEEN A. MANLEY
Notary Publc, State of New York
No. 01MA5069037 By: /s/Richard D. Callahan
Qualified in Cayuga County ----------------------------
Commission Expires November 12, 1998
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STATE OF NEW YORK )
COUNTY OF CAYUGA ) SS:
On March 11, 1997, before me personally appeared Richard Callahan, who,
being duly sworn, said that he is the President and Chief Executive Officer of
Cayuga Savings Bank, the Corporation executing the above instrument, and that he
signed his name to this instrument with the authority of the Cayuga Savings Bank
Board of Directors.
/s/Kathleen A. Manley
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Notary Public
KATHLEEN A. MANLEY
Notary Publc, State of New York
No. 01MA5069037
Qualified in Cayuga County
Commission Expires November 12, 1998
/s/James H. Paul
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JAMES H. PAUL
STATE OF NEW YORK )
COUNTY OF CAYUGA ) SS:
On this 11th day of March, 1997, before me personally came James H. Paul,
to me known to be the person described in and who executed the foregoing
instrument and he duly acknowledged to me that he executed the same.
/s/John P. McLane
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Notary Public
JOHN JP. McLANE
Notary Public, State of New York
Reg. in Cayuga County, No. 1345
My Commission Expires July 31, 1998
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EXHIBIT A
GENERAL RELEASE OF CLAIMS
In consideration of the mutual promises made in a Separation Agreement
dated March 11, 1997, James H. Paul releases and forever discharges Iroquois
Bancorp, Inc. (the "Bank"), its officers, employees, directors, and agents, in
both their corporate and individual capacities, as well as the Bank's
affiliated, related or successor corporations, from all suits, actions, claims,
or damages whatsoever which he ever had, now has or may have against them. This
release applies, without limitation, to all suits, actions, claims or damages
arising from Paul's employment with the Bank and the termination of that
employment, claims arising from any employment agreements or other agreements
involving the parties, employment discrimination claims and claims regarding the
validity or enforceability of this release arising under local, state, federal
or international law (including, but not limited to, the Age Discrimination in
Employment Act, 29 U.S.C. (S)621 et seq., the Civil Rights Act of 1964, as
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amended, 42 U.S.C. (S)2000-e et seq., and New York Executive Law (S)296 et
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seq.), claims for breach of contract or wrongful discharge, tort claims, and any
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claims for attorney's fees, interest, disbursements or penalties related to
these released claims.
DATED: March 11 , 1997
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/s/James H. Paul
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James H. Paul
GENERAL RELEASE OF CLAIMS
In consideration of the mutual promises made in a Separation Agreement
dated March 11 , 1997 James H. Paul releases and forever discharges Cayuga
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Bank (the "Bank"), its officers, employees, directors, and agents, in both their
corporate and individual capacities, as well as the Bank's affiliated, related
or successor corporations, from all suits, actions, claims, or damages
whatsoever which he ever had, now has or may have against them. This release
applies, without limitation, to all suits, actions, claims or damages arising
from Paul's employment with the Bank and the termination of that employment,
claims arising from any employment agreements or other agreements involving the
parties, employment discrimination claims and claims regarding the validity and
enforceability of this release arising under local, state, federal or
international law (including, but not limited to, the Age Discrimination in
Employment Act, 29 U.S.C. (S)621 et seq., the Civil Rights Act of 1964, as
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amended, 42 U.S.C. (S)2000-e et seq., and New York Executive Law (S)296 et
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seq.), claims for breach of contract or wrongful discharge, tort claims, and any
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claims for attorney's fees, interest, disbursements or penalties related to
these released claims.
DATED: March 11 , 1997
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/s/James H. Paul
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James H. Paul
EXHIBIT B
RELEASE OF CLAIMS
In consideration of the mutual promises made in the Separation
Agreement dated March 11, 1997, Cayuga Bank (the "Bank"), releases and forever
discharges James H. Paul and his agents or representatives, from all suits,
actions, claims, damages whatsoever which it ever had, now has or may have
against him, provided that this Release shall not apply to: (1) claims based on
conduct which, when committed, violated the criminal laws of the State of New
York or the United States of America; (2) claims based on fraud,
misappropriation, theft, or any dishonest act; or (3) any claim for which the
Bank has or may have coverage or protection under any current or former policy,
bond or agreement insuring against losses for breach of fiduciary duty,
including, without limitation, the Fiduciary Liability Policy issued to the Bank
by Progressive Casualty Insurance Company on or about November 1, 1995. Should
any insurer of the Bank assert or claim that the execution of this Release voids
or in any way diminishes insurance coverage otherwise available to the Bank
against losses for fiduciary liability, then this Release shall be void and
unenforceable until a court of competent jurisdiction declares otherwise and all
avenues of appeal have been exhausted. If the execution of this Release voids
or otherwise diminishes insurance coverage or protection otherwise available to
the Bank against losses for fiduciary liability, Paul acknowledges and agrees to
hold the Bank harmless from any damage or injury which the Bank suffers as a
result.
DATED: March 11, 1997
CAYUGA BANK
By: /s/Richard D. Callahan
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STATE OF NEW YORK )
COUNTY OF CAYUGA ) SS:
On March 11, 1997, before me personally appeared Richard Callahan,
who, being duly sworn, said that he is the President and Chief Executive Officer
of Cayuga Bank, the Corporation executing the above instrument, and that he
signed his name to this instrument with the authority of the Cayuga Bank Board
of Directors.
/s/Kathleen A. Manley
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Notary Public
KATHELEEN A . MANLEY
Notary Public, State of New York
No. 01MA5069037
Qualified in Cayuga County
Commission Expires November 12, 1998
RELEASE OF CLAIMS
In consideration of the mutual promises made in the Separation
Agreement dated March 11, 1997, Iroquois Bancorp (the "Bank"), releases and
forever discharges James H. Paul and his agents or representatives, from all
suits, actions, claims, damages whatsoever which it ever had, now has or may
have against him, provided that this Release shall not apply to: (1) claims
based on conduct which, when committed, violated the criminal laws of the State
of New York or the United States of America or any government regulations
applicable to the Bank; (2) claims based on fraud, misappropriation, theft, or
any dishonest act; or (3) any claim for which the Bank has or may have coverage
or protection under any current or former policy, bond or agreement insuring
against losses for breach of fiduciary duty, including, without limitation, the
Fiduciary Liability Policy issued to the Bank by Progressive Casualty Insurance
Company on or about November 1, 1995. Should any insurer of the Bank assert or
claim that the execution of this Release voids or in any way diminishes
insurance coverage otherwise available to the Bank against lossess for fiduciary
liability, then this Release shall be void and unenforceable until a court of
competent jurisdiction declares otherwise and all avenues of appeal have been
exhausted. If the execution of this Release voids or otherwise diminishes
insurance coverage or protection otherwise available to the Bank against losses
for fiduciary liability, Paul acknowledges and agrees to hold the Bank harmless
from any damage or injury which the Bank suffers as a result.
DATED: March 11, 1997
IROQUOIS BANCORP, INC.
By: /s/Richard D. Callahan
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STATE OF NEW YORK )
COUNTY OF CAYUGA ) SS:
On March 11, 1997, before me personally appeared Richard Callahan,
who, being duly sworn, said that he is the President and Chief Executive Officer
of Iroquois Bancorp, Inc. the Corporation executing the above instrument, and
that he signed his name to this instrument with the authority of the Iroquois
Bancorp Board of Directors.
/s/Kathleen A. Manley
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Notary Public
KATHLEEN A. MANLEY
Notary Publc, State of New York
No. 01MA5069037
Qualified in Cayuga County
Commission Expires November 12, 1998