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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This Agreement made as of the 1st day of September, 2000, by and between M&W
AGENCY, INC., hereinafter referred to as the "Employer", EVANS NATIONAL BANK, a
national banking corporation with offices at 14-16 North Main Street, Angola,
New York, hereinafter referred to as the "Bank", and, ROBERT G. MILLER, JR..,
hereinafter referred to as the "Employee," for the employment of Employee by the
Employer.
1. TERM OF EMPLOYMENT: Unless terminated pursuant to the terms of this
Agreement, the Employer and Employee agree that the term of employment shall
be for a period commencing on the date of this Agreement and terminating
December 31, 2005 and continuing year to year thereafter.
2. COMPENSATION: Employee shall receive, in exchanges for his services,
hereunder, compensation as follows:
(A)Base Salary of $150,000.00 annually, subject to such increases as may be
approved from time to time by the Board of Directors of Employer, with the
consent of the Board of Directors of the Bank;
(B)In addition to the base salary, Employee will receive an annual bonus for
years after 2001 equal to 25% of the first $400,000.00 of EBIT in excess of
the annual Target Amount (maximum annual incentive bonus of $100,000.00).
"EBIT" shall mean the annual net income before interest and income taxes for
the Employer as determined annually by the certified public accountants of
the Bank, in accordance with generally accepted accounting principles,
consistently applied. The Annual Target Amounts will be as follows:
2002 - $606,650.00
2003 - $667,315.00
2004 - $734,046.00
2005 - $807,451.00
For the year 2001, Employee will receive a special $25,000.00 bonus for the
year 2001 only if the EBIT of the Employer is greater than $450,000.00 or
less than $651,500.00. If EBIT for the year 2001 is greater than
$651,500.00, the bonus will be $25,000 plus 25% of the first $300,000.00 of
EBIT in excess of $651,500.00.
The bonus shall be payable within 30 days after the accountants of the Bank
issue their report on the consolidated financial statements of the Bank for
such year.
3. DUTIES:
(A)During the term of his employment hereunder, Employee agrees to serve as
President of the Employer and be primarily responsible for the direct
management of the Employer's resources toward the achievement of strategic
and financial objectives in a manner which is consistent with Board
philosophy and policy, and with various regulatory requirements. The
Employee's primary duties will consist of account servicing, marketing,
recruiting and training as requested by the Employer and also the
solicitation, negotiation, placement and procurement of insurance business
for which the Employer is licensed and authorized to sell. Further, the
Employee has no authority to bind Employer to any contract unless such
authority has been given to Employee by Employer's Board of Directors. In
addition, the Employee shall have such other duties and responsibilities as
may be reasonably assigned to him from time to time by the Employer.
Employee also agrees to perform such other services and duties consistent
with the office or offices in which he is serving and its responsibilities
as may from time to time be prescribed by the Board of Directors.
(B)Employee shall also serve as a Director of the Bank and/or of the Evans
Bancorp, Inc., if appointed or elected.
(C)Employee shall devote his full time energies and attention, during normal
business hours (excluding vacation) to the business and affairs of the
Employer.
(D)All property and casualty insurance business secured by the Employee will
be placed through the Employer. The Employee will use his best efforts to
place all other insurance business (including, but not limited to, life
insurance products, long-term care or medical insurance products and group
insurance, annuities and employee benefit plans) secured by him with the
Employer or its
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affiliates. All insurance business placed by the Employee with the Employer
shall be conducted in the name of Employer or its affiliates. If the
Employee is not able for any reason to place an insurance policy for a life
insurance product, long-term care or medical insurance product, annuity or
employee benefit plan with the Employer or its affiliates, the Employee may
place such policy through another agency provided that such agency has been
approved in advance in writing by the Employer and on such business shall
enure to the benefit of the Employer. Notwithstanding the foregoing, the
Employee shall retain his rights to the employee portion of residual
commissions earned on life insurance and annuities sold through M&W Group,
Inc. prior to the date of this Agreement.
(E)The Employee agrees that during the term of this Agreement, he will
comply with all regulations and guidelines of the Employer (including the
Commercial and Personal Lines Work Manuals), will do nothing to jeopardize
or impair the Employer's insurance licenses, and will comply with all rules
and regulations of the Insurance Department and the statutes of the State of
New York or any other state which regulates the business of the Employer,
pertaining to the insurance business.
(F)Employee shall maintain any and all licenses and permits required to be
owned or possessed by him under applicable law (including NASD License) in
order to perform the duties required by him hereunder. Employee shall keep
and maintain all of such licenses and permits in full force and effect
during the term of this Agreement. The Employer will pay any required
license or permit fees.
(G)Employee shall, except as otherwise provided herein, be subject to the
Employer's and/or the Bank's rules, practices and policies applicable to the
Bank's Executive Employees.
(H)Employee shall report directly to and be responsible to the Chairman of
the Bank/Employer.
4. BENEFITS:
(A)Employee shall participate in all life, disability and medical insurance
plans, pensions and other similar plans which the Employer or the Bank may
have or may establish from time to time, in which Employee is eligible to
participate pursuant to the terms thereof. The foregoing, however, shall not
be construed to require the Bank to establish any such plans or to prevent
the Employer or the Bank from modifying or terminating such plans and no
such action or failure thereof shall effect this Agreement.
(B)Employee shall be entitled to vacation as determined by the Board of
Directors for all Bank Officers, but in no event shall it be less than the
scheduled vacations and personal days as set forth in the Employee Handbook.
(C)Employee shall attend such continuing education seminars and obtain
membership in such organizations as may be reasonably required by the Board;
provided however, that the Employer shall bear the expenses of such
activities.
(D)In addition to all of the above, Employee shall specifically be entitled
to the following benefits:
1. Use of a company-owned vehicle, similar to current make and model.
2. Reimbursement for country club membership currently maintained by the
Employee.
3. Group term life insurance: Provided by the Employer at no cost to
employee - valued at two times annual salary. This plan carries a cap of
$350,000.00.
4. Basic Dental Coverage (Preventative): Provided by the Employer at no cost
to employee - family coverage cost $17.10 per month, or $205.20 per annum.
5. Health Insurance: In lieu of Health Insurance, Employer agrees to
purchase a Long Term Health Care Insurance policy covering Employee and his
spouse at an annual cost not to exceed the current cost to Employer of
family health insurance coverage.
6. Employee Retirement Savings Plan (401K): Participation in accordance with
the provisions of such plan, with the vesting service to include prior
service with M&W Group, Inc.
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7. Defined Benefit Pension Plan: In accordance with the provisions of the
plan. Except that any applicable vesting schedule and waiting period shall
include periods of employment with M&W Group Insurance, Inc.
5. WORKING AND OTHER FACILITIES: During the term of this Agreement, Employee
shall be furnished with such working facilities, secretarial help and other
services, as are suitable to his position and adequate for the performance
of his duties.
6. EXPENSES: The Employer will reimburse Employee for reasonable expenses,
including travelling expenses, incurred by him in connection with his
employment in the business of the Bank upon the presentation by Employee of
appropriate substantiation for such expenses.
7. CONFIDENTIALITY AND NON-INTERFERENCE: In the course of his employment by the
Employer, Employee shall have and has had access to confidential or
proprietary data or information of the Employer. Employee shall not at any
time, divulge or communicate to any person, nor shall he direct any employee
to divulge or communicate to any person (other than to a person bound by
confidentiality obligation similar to those contained herein, and other than
is necessary in performing his duties hereunder) or used to the detriment of
the Employer or for the benefit of any other person, any of such data or
information. The provision of this section shall survive Employee's
employment hereunder, whether by the normal expiration thereof or otherwise.
The term "confidential" or "proprietary data or information" as used in this
Agreement, shall mean information not generally available to the public
including, without limitation, personnel information, financial information,
customer lists, computer programs, marketing and advertising data. Employee
acknowledges and agrees that any confidential or proprietary data or
information heretofore acquired was received in confidence.
The Employer and Employee agree that the customer lists, files, records and
other material relating to the insurance customers of the Employer
(including Employee Accounts), the trade secrets, operational processes and
techniques (all of which are hereinafter referred to as the "Confidential
Information") are valuable and unique assets of the Employer and the
Employee has no right or interest in such Confidential Information. The
Employee agrees not to disclose the Confidential Information to any person
or entity other than to the employees of the Employer and to use the
Confidential Information solely for the business and benefit of the
Employer. The Employee also agrees to return all of the Confidential
Information and all copies thereof to the Employer upon the termination of
this Agreement. The Employer agrees to use its best efforts to prevent
disclosure of Confidential Information relating to the Employee Accounts and
Accounts to any person or entity other than employees of the Employer.
8. EARLY TERMINATION: Employee's employment hereunder shall terminate prior to
the expiration of this Agreement or any extensions thereof, on the following
terms and conditions:
(A)This Agreement shall terminate automatically on the death of Employee.
Notwithstanding the foregoing, the Bank shall pay to Employee's estate any
compensation and reimbursable expenses accrued to the date of his death
which otherwise would have been paid to the Employee.
(B)This Agreement shall be terminated, at the Employer's election, if
Employee is unable to perform his duties hereunder, for a period of six
months (180) days in any 365 day period (or at such earlier time as the
Bank's "salary continuation" insurance becomes effective) by reason of
physical or mental disability. For purposes of this Agreement, "physical or
mental disability" shall mean Employee's inability, due to health reasons,
to discharge properly his duties of employment supported by the opinion of a
physician selected by the employer. If the Employee is subsequently able to
return to work after termination as provided herein, Employer may in its
discretion, employ Employee in the same capacity or in such other capacity
as may be mutually agreeable under such terms and conditions as the parties
may so agree. Prior to such return however, Employee shall provide a
physician's opinion certifying his ability to return to work.
(C)In the event of personal dishonesty, willful misconduct, gross
negligence, loss of his license to act as an insurance agent in New York
State, insubordination, or in the event of his deliberate failure to fulfill
his obligations under this Agreement, after written notice from the Board
provided Employee fails to take corrective action within such two (2) week
period, the Board of Directors may terminate this Agreement by giving the
Employee two (2) weeks written notice thereof. Such termination shall be
effective at the expiration of such two (2) week notice. Thereafter the
Employer shall not be obligated under any of the provisions herein, except
as required by any statute in effect at that time.
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(D)Employee may after December 31, 2005 voluntarily terminate his employment
upon giving the Employer four (4) weeks written notice of his decision to
terminate. Such a termination shall not constitute a breach of this
Agreement; provided, however, that Employee shall be obligated after the
date of such termination to continue to be bound by the conditions outlined
in Section 7 hereof.
(E)The parties may mutually agree to terminate this Agreement in writing on
such terms as they may determine.
(F)The Employer may terminate Employee's employment without cause and
without notice; provided, however, that the Employer shall be obligated to
continue to pay Employee's base salary plus benefits for the longer of three
(3) months after the date of such termination or the remainder of the term
of the Agreement and provided further that Employee shall be relieved of all
further obligations under this Agreement except for provisions pursuant to
Paragraph 7.
(G)In the event of a "Sale of the Bank" (as defined below), the Employee
may, at any time after one year following the "Sale of the Bank" voluntarily
terminate his employment upon giving the Employer four (4) weeks written
notice of his decision to terminate, provided, however, that the Employee
shall be obligated after the date of such termination to continue to be
bound by the conditions outlined in Section 7 hereof. The term "Sale of the
Bank" shall mean a sale or other transaction following which Evans Bancorp,
Inc. no longer owns 51% or more of the voting stock of the Bank or a sale or
other transaction following which an unaffiliated person acquires 80% or
more of the voting stock of Evans Bancorp, Inc. In the event the Employee
terminates this Employment Agreement under this Subparagraph, then his
obligations under Subsection 2(a) of the Covenant Not to Compete Agreement
dated September 1, 2000 shall terminate as of the date this Agreement
terminates but the other provisions of such Section 2 and the Covenant Not
to Compete Agreement shall continue in full force and effect.
9. MODIFICATION: This Agreement constitutes the full and complete understanding
of the parties and supersedes all prior agreements and understandings oral
or written, between the parties, with respect to the subject matter hereof.
This Agreement may not be modified or amended except by an instrument in
writing, signed by the party against which enforcement thereof may be
sought.
10. SEVERABILITY: Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of
this Agreement or effecting the validity or enforceability of any of the
terms or provisions of this Agreement or in other jurisdiction.
11. WAIVER OF BREACH: The waiver by either party of a breach of any provision of
this Agreement shall not operate as, or be construed as, a waiver of any
subsequent breach.
12. NOTICE: All notice hereunder shall be in writing and shall be sent by
express mail or by certified or registered mail, postage prepaid, return
receipt requested, to Employee at his residence as listed in the Employer's
records, and to the Bank, c/o Evans National Bank, 14 - 16 North Main
Street, Angola, New York 14006, Attention: Mr. Richard M. Craig, President,
Chairman, and CEO, and to Employer at 265 Central Avenue, Silver Creek, New
York, 14136-0151.
13. ASSIGNABILITY/BINDING EFFECT: This Agreement shall not be assignable by
Employee without the written consent of the Board of Directors of the
Employer. The Employer may assign its rights under this Agreement. This
Agreement shall be binding upon and inure to the benefit of Employee, his
legal representatives, heirs and distributees and shall be binding upon and
inure to the benefit of the Employer, the Bank, its successors and assigns.
14. GOVERNING LAW: All questions pertaining to the validity, construction,
execution and performance of this Agreement shall be construed and governed
in accordance with the law of the State of New York.
15. HEADINGS: The headings in this Agreement are intended solely for convenience
of reference and shall be given no effect in the construction or
interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day
and year above written.
EMPLOYER: BANK:
M&W AGENCY, INC. EVANS NATIONAL BANK
By: /s/ Richard M. Craig, Chairman By: /s/ Richard M. Craig, Chairman
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RICHARD M. CRAIG, CHAIRMAN RICHARD M. CRAIG, CHAIRMAN
EMPLOYEE:
M&W AGENCY, INC.
By: /s/ Robert G. Miller, Jr.
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ROBERT G. MILLER, JR.