Exhibit 10.1
Form of proposed Employment Agreement between
Cohoes Savings Bank and certain executive officers
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
________ ___, 1998 by and between Cohoes Savings Bank, a state-chartered savings
bank organized and existing under the laws of the State of New York (the
"Bank"), and Richard A. Ahl (the "Executive").
W I T N E S S E T H :
WHEREAS, the Executive currently serves as the Executive Vice President,
Chief Financial Officer and Secretary of the Bank and as the Executive Vice
President, Chief Financial Officer and Secretary of Cohoes Bancorp, Inc. (the
"Company"), and effective as of the date of this Agreement, the Bank has
converted from mutual to capital stock form and has become the wholly owned
subsidiary of the Company; and
WHEREAS, the Bank desires to assure for itself the continued availability
of the Executive's services as provided in this Agreement, and the Board of
Directors of the Bank (the "Board") recognizes the need for the Executive to be
able to perform such services with a minimum of personal distraction in the
event of a pending or threatened Change in Control (as hereinafter defined); and
WHEREAS, the Executive is willing to continue to serve the Bank on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and conditions hereinafter set forth, the Bank and the Executive hereby agree as
follows:
SECTION 1. EMPLOYMENT.
The Bank agrees to continue to employ the Executive, and the Executive
hereby agrees to such continued employment, during the period and upon the terms
and conditions set forth in this Agreement.
SECTION 2. EMPLOYMENT PERIOD; REMAINING UNEXPIRED EMPLOYMENT PERIOD.
(a) The terms and conditions of this Agreement shall be and
remain in effect during the period of employment established under this section
2 ("Employment Period"). The Employment Period shall be for an initial term of
three years beginning on the date of this Agreement and ending on the third
anniversary date of this Agreement (each, an "Anniversary Date"), plus such
extensions, if any, as are provided pursuant to section 2(b).
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(b) Except as provided in section 2(c), beginning on the date
of this Agreement, the Employment Period shall automatically be extended for one
additional day each day, unless either the Bank or the Executive elects not to
extend the Agreement further by giving written notice thereof to the other
party, in which case the Employment Period shall end on the third anniversary of
the date on which such written notice is given. For all purposes of this
Agreement, the term "Remaining Unexpired Employment Period" as of any date shall
mean the period beginning on such date and ending on the last day of the
Employment Period taking into account any extensions under this section 2(b).
Upon termination of the Executive's employment with the Bank for any reason
whatsoever, any daily extensions provided pursuant to this section 2(b), if not
theretofore discontinued, shall automatically cease.
(c) Nothing in this Agreement shall be deemed to prohibit the
Bank at any time from terminating the Executive's employment during the
Employment Period with or without notice for any reason; provided, however, that
the relative rights and obligations of the Bank and the Executive in the event
of any such termination shall be determined under this Agreement.
SECTION 3. DUTIES.
The Executive shall serve as Executive Vice President, Chief Financial
Officer and Secretary of the Bank, having such power, authority and
responsibility and performing such duties as are prescribed by or under the
By-Laws of the Bank and as are customarily associated with such position. The
Executive shall devote his full business time and attention (other than during
weekends, holidays, approved vacation periods, and periods of illness or
approved leaves of absence) to the business and affairs of the Bank and shall
use his best efforts to advance the interests of the Bank.
SECTION 4. CASH COMPENSATION.
In consideration for the services to be rendered by the Executive
hereunder, the Bank shall pay to him a salary equal to the base salary from the
Company and the Bank in effect on the date of this Agreement, less the amount of
base salary actually paid to the Executive by the Company during the Employment
Period. The Executive's salary shall be payable in approximately equal
installments in accordance with the Bank's customary payroll practices for
senior officers. The Board shall review the Executive's annual rate of salary at
such times during the Employment Period as it deems appropriate, but not less
frequently than once every twelve months, and may, in its discretion, approve an
increase therein. In addition to salary, the Executive may receive other cash
compensation from the Bank for services hereunder at such times, in such amounts
and on such terms and conditions as the Board may determine from time to time.
SECTION 5. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
During the Employment Period, the Executive shall be treated as an employee
of the Bank and shall be entitled to participate in and receive benefits under
any and all qualified or non-qualified retirement, pension, savings,
profit-sharing or stock bonus plans, any and all group life, health (including
hospitalization, medical and major medical), dental, accident and long term
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disability insurance plans, and any other employee benefit and compensation
plans (including, but not limited to, any incentive compensation plans or
programs, stock option and appreciation rights plans and restricted stock plans)
as may from time to time be maintained by, or cover employees of, the Bank, in
accordance with the terms and conditions of such employee benefit plans and
programs and compensation plans and programs and consistent with the Bank's
customary practices. In addition, the Executive shall be entitled to receive
such perquisites as are customary for an individual employed in the Executive's
position in a firm of the size and nature of the Bank, including, but not
limited to, the use of an automobile and the payment of country club and other
club fees and expenses.
SECTION 6. INDEMNIFICATION AND INSURANCE.
(a) During the Employment Period and for a period of six years
thereafter, the Bank shall cause the Executive to be covered by and named as an
insured under any policy or contract of insurance obtained by it to insure its
directors and officers against personal liability for acts or omissions in
connection with service as an officer or director of the Bank or service in
other capacities at the request of the Bank. The coverage provided to the
Executive pursuant to this section 6 shall be of the same scope and on the same
terms and conditions as the coverage (if any) provided to other officers or
directors of the Bank.
(b) To the maximum extent permitted under applicable law,
during the Employment Period and for a period of six years thereafter, the Bank
shall indemnify the Executive against and hold him harmless from any costs,
liabilities, losses and exposures to the fullest extent and on the most
favorable terms and conditions that similar indemnification is offered to any
director or officer of the Bank or any subsidiary or affiliate thereof.
SECTION 7. OUTSIDE ACTIVITIES.
The Executive may serve as a member of the boards of directors of such
business, community and charitable organizations as he may disclose to and as
may be approved by the Board (which approval shall not be unreasonably
withheld); provided, however, that such service shall not materially interfere
with the performance of his duties under this Agreement. The Executive may also
engage in personal business and investment activities which do not materially
interfere with the performance of his duties hereunder; provided, however, that
such activities are not prohibited under any code of conduct or investment or
securities trading policy established by the Bank and generally applicable to
all similarly situated Executives. The Executive may also serve as an officer or
director of the Company on such terms and conditions as the Company and the Bank
may mutually agree upon, and such service shall not be deemed to materially
interfere with the Executive's performance of his duties hereunder or otherwise
result in a material breach of this Agreement. If the Executive is discharged or
suspended, or is subject to any regulatory prohibition or restriction with
respect to participation in the affairs of the Company, he shall continue to
perform services for the Bank in accordance with this Agreement but shall not
directly or indirectly provide services to or participate in the affairs of the
Company in a manner inconsistent with the terms of such discharge or suspension
or any applicable regulatory order.
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SECTION 8. WORKING FACILITIES AND EXPENSES.
The Executive's principal place of employment shall be at the Bank's
executive offices located in Cohoes, New York, or at such other location within
50 miles of the address at which the Bank shall maintain its principal executive
offices, or at such other location as the Bank and the Executive may mutually
agree upon. The Bank shall provide the Executive at his principal place of
employment with a private office, secretarial services and other support
services and facilities suitable to his position with the Bank and necessary or
appropriate in connection with the performance of his assigned duties under this
Agreement. The Bank shall reimburse the Executive for his ordinary and necessary
business expenses, including, without limitation, the Executive's travel and
entertainment expenses incurred in connection with the performance of his duties
under this Agreement, in each case upon presentation to the Bank of an itemized
account of such expenses in such form as the Bank may reasonably require.
SECTION 9. TERMINATION OF EMPLOYMENT WITH BENEFITS.
(a) The Executive shall be entitled to the benefits described
in section 9(b) in the event that:
(i) his employment with the Bank terminates during the
Employment Period as a result of the Executive's voluntary
resignation within 90 days following:
(A) the failure of the Board to appoint or re-appoint
or elect or re-elect the Executive to the position with the
Bank stated in section 3 of this Agreement (or a more senior
office);
(B) if the Executive is a member of the Board, the
failure of the shareholders of the Bank to elect or re-elect
the Executive to the Board or the failure of the Board (or
the nominating committee thereof) to nominate the Executive
for such election or re-election;
(C) the expiration of a 30-day period following the
date on which the Executive gives written notice to the Bank
of its material failure, whether by amendment of the Bank's
Restated Organization Certificate, the Bank's By-Laws,
action of the Board or the Bank's shareholders or otherwise,
to vest in the Executive the functions, duties, or
responsibilities prescribed in section 3 of this Agreement,
unless, during such 30-day period, the Bank cures such
failure;
(D) the expiration of a 30-day period following the
date on which the Executive gives written notice to the Bank
of its material breach of any term, condition or covenant
contained in this Agreement (including, without limitation,
any reduction of the Executive's rate of base salary in
effect from time to time and any change in the terms and
conditions of any compensation or benefit program in which
the Executive participates which, either individually or
together with other changes, has a material adverse effect
on the aggregate value of his total compensation package),
unless, during such 30-day period, the Bank cures such
failure; or
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(E) a change in the Executive's principal place of
employment for a distance in excess of 50 miles from the
Bank's principal office in Cohoes, New York; or
(F) the liquidation, dissolution, bankruptcy, or
insolvency of the Bank, the Bank or any of their respective
subsidiaries or affiliates; or
(ii) the Executive's employment with the Bank is terminated
by the Bank during the Employment Period for any reason other
than for "cause," as provided in section 10(a).
(b) Upon the occurrence of any of the events described in
section 9(a) of this Agreement, the Bank shall pay and provide to the Executive
(or, in the event of his death, to his estate):
(i) his earned but unpaid salary (including, without
limitation, all items which constitute wages under applicable law
and the payment of which is not otherwise provided for in this
section 9(b)) as of the date of the termination of his employment
with the Bank, such payment to be made at the time and in the
manner prescribed by law applicable to the payment of wages but
in no event later than 30 days after termination of employment;
(ii) the benefits, if any, to which he is entitled as a
former employee under the employee benefit plans and programs and
compensation plans and programs maintained for the benefit of the
Bank's officers and employees;
(iii) continued group life, health (including
hospitalization, medical and major medical), dental, accident and
long term disability insurance benefits, in addition to that
provided pursuant to section 9(b)(ii), and after taking into
account the coverage provided by any subsequent employer, if and
to the extent necessary to provide for the Executive, for the
Remaining Unexpired Employment Period, coverage equivalent to the
coverage to which he would have been entitled under such plans
(as in effect on the date of his termination of employment, or,
if his termination of employment occurs after a Change of
Control, on the date of such Change of Control, whichever
benefits are greater), if he had continued working for the Bank
during the Remaining Unexpired Employment Period at the highest
annual rate of salary achieved during the Employment Period;
(iv) within 30 days following the Executive's termination of
employment with the Bank, a lump sum payment, in an amount equal
to the present value of the salary (excluding any additional
payments made to the Executive in lieu of the use of an
automobile) that the Executive would have earned if he had
continued working for the Bank during the Remaining Unexpired
Employment Period at the highest annual rate of salary achieved
during the Employment Period, where such present value is to be
determined using a discount rate equal to the applicable
short-term federal rate prescribed under section 1274(d) of the
Internal Revenue Code of 1986, as amended (the "Code"),
compounded using the compounding periods corresponding to the
Bank's regular payroll periods for its officers, such lump sum to
be paid in lieu of all other payments of salary provided for
under this Agreement in respect of the period following any such
termination;
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(v) within 30 days following the Executive's termination of
employment with the Bank, a lump sum payment in an amount equal
to the present value of the additional employer contributions to
which he would have been entitled under the Cohoes Savings Bank
401(k) Savings and Profit-Sharing Plan, the Cohoes Bancorp, Inc.
Employee Stock Ownership Plan (together with the defined
contribution portion of the Benefit Restoration Plan of Cohoes
Bancorp, Inc. or any other supplemental defined contribution
plan) and any and all other qualified and non-qualified defined
contribution plans maintained by, or covering employees of, the
Bank as if he were 100% vested thereunder and had continued
working for the Bank during the Remaining Unexpired Employment
Period at the highest annual rate of salary achieved during the
Employment Period and making the maximum amount of employee
contributions, if any, required or permitted under such plan or
plans, such present value to be determined on the basis of a
discount rate, compounded using the compounding period that
corresponds to the frequency with which employer contributions
are made to the relevant plan, equal to the Applicable PBGC Rate;
(vi) within 30 days following the Executive's termination of
employment with the Bank, a lump sum payment in an amount equal
to the payments that would have been made (without discounting
for early payment) to the Executive under any cash bonus or
long-term or short-term cash incentive compensation plan
maintained by, or covering employees of, the Bank if he had
continued working for the Bank during the Remaining Unexpired
Employment Period and had earned the maximum bonus or incentive
award in each calendar year that ends during the Remaining
Unexpired Employment Period, such payments to be equal to the
product of:
(A) the maximum percentage rate at which an award was
ever available to the Executive under such incentive
compensation plan; multiplied by
(B) the salary that would have been paid to the
Executive during each such calendar year at the highest
annual rate of salary achieved during the Employment Period.
(vii) at the election of the Bank made within 30 days
following the occurrence of the event described in section 9(a),
upon the surrender of options or appreciation rights issued to
the Executive under any stock option and appreciation rights plan
or program maintained by, or covering employees of, the Bank, a
lump sum payment in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share
of stock of the same class as the stock subject to the
option or appreciation right, determined as of the date of
termination of employment, over (II) the exercise price per
share for such option or appreciation right, as specified in
or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which options
or appreciation rights are being surrendered.
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For purposes of this section 9(b)(vii), the Executive shall
be deemed fully vested in all options and appreciation
rights under any stock option or appreciation rights plan or
program maintained by, or covering employees of, the Bank,
even if he is not vested under the terms of such plan or
program; and
(viii) at the election of the Bank made within 30 days
following the occurrence of the event described in section 9(a),
upon the surrender of any shares awarded to the Executive under
any restricted stock plan maintained by, or covering employees
of, the Bank, a lump sum payment in an amount equal to the
product of:
(A) the fair market value of a share of stock of the
same class of stock granted under such plan, determined as
of the date of the Executive's termination of employment;
multiplied by
(B) the number of shares which are being surrendered.
For purposes of this section 9(b)(viii), the Executive shall be
deemed fully vested in all shares awarded under any restricted
stock plan maintained by, or covering employees of, the Bank,
even if he is not vested under the terms of such plan.
The Bank and the Executive hereby stipulate that the damages which may be
incurred by the Executive following any such termination of employment are not
capable of accurate measurement as of the date first above written and that the
payments and benefits contemplated by this section 9(b) constitute reasonable
damages under the circumstances and shall be payable without any requirement of
proof of actual damage and without regard to the Executive's efforts, if any, to
mitigate damages. The Bank and the Executive further agree that the Bank may
condition the payments and benefits (if any) due under sections 9(b)(iii), (iv),
(v) and (vi) on the receipt of the Executive's resignation from any and all
positions which he holds as an officer, director or committee member with
respect to the Bank or any of its subsidiaries or affiliates.
SECTION 10. TERMINATION WITHOUT ADDITIONAL BANK LIABILITY.
In the event that the Executive's employment with the Bank shall terminate
during the Employment Period on account of:
(a) the discharge of the Executive for "cause," which, for purposes of
this Agreement, shall mean a discharge because the Board determines that the
Executive: (i) has intentionally failed to perform his assigned duties under
this Agreement (including, for these purposes, the Executive's inability to
perform such duties as a result of drug or alcohol dependency); (ii) has
intentionally engaged in dishonest or illegal conduct in connection with his
performance of services for the Bank or has been convicted of a felony; (iii)
has willfully violated, in any material respect, any law, rule, regulation,
written agreement or final cease-and-desist order with respect to his
performance of services for the Bank, as determined by the Board; or (iv) has
intentionally breached the material terms of this Agreement;
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(b) the Executive's voluntary resignation from employment with the Bank
for reasons other than those specified in section 9(a)(i); or
(c) the death of the Executive while employed by the Bank, or the
termination of the Executive's employment because of "total and permanent
disability" within the meaning of the Company's or the Bank's long-term
disability plan for employees; then the Bank shall have no further obligations
under this Agreement, other than the payment to the Executive of his earned but
unpaid salary as of the date of the termination of his employment and the
provision of such other benefits, if any, to which he is entitled as a former
employee under the Bank's employee benefit plans and programs and compensation
plans and programs.
For purposes of this section 10, no act or failure to act, on the part of
the Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Bank. Any act,
or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the written advice of counsel for the Bank
shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Bank. Prior to the date
on which a Change in Control occurs, the cessation of employment of the
Executive shall not be deemed to be for "cause" within the meaning of section
10(a) unless and until there shall have been delivered to the Executive a copy
of a resolution duly adopted by the affirmative vote of three-fourths of the
members of the Board at a meeting of the Board called and held for such purpose
(after reasonable notice is provided to the Executive and the Executive is given
an opportunity, together with counsel, to be heard before the Board), finding
that, in the good faith opinion of the Board, the Executive is guilty of the
conduct described in section 10(a) above, and specifying the particulars thereof
in detail. On and after the date that a Change in Control occurs, a
determination under this section 10 shall require the affirmative vote of at
least three-fourths of the members of the Board acting in good faith, and such
vote shall not be made prior to the expiration of a 60-day period following the
date on which the Board shall, by written notice to the Executive, furnish to
him a statement of its grounds for proposing to make such determination, during
which period the Executive shall be afforded a reasonable opportunity to make
oral and written presentations to the members of the Board, and to be
represented by his legal counsel at such presentations to refute the grounds for
the proposed determination.
SECTION 11. TERMINATION UPON OR FOLLOWING A CHANGE IN CONTROL.
(a) A Change in Control of the Bank ("Change in Control")
shall be deemed to have occurred upon the happening of any of the
following events:
(i) approval by the shareholders of the Bank of a
transaction that would result and does result in the
reorganization, merger or consolidation of the Bank,
respectively, with one or more other persons, other than a
transaction following which:
(A) at least 51% of the equity ownership interests of
the entity resulting from such transaction are beneficially
owned (within the meaning of Rule 13d-3 promulgated
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under the Securities Exchange Act of 1934, as amended
("Exchange Act")) in substantially the same relative
proportions by persons who, immediately prior to such
transaction, beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) at least 51% of
the outstanding equity ownership interests in the Bank; and
(B) at least 51% of the securities entitled to vote
generally in the election of directors of the entity
resulting from such transaction are beneficially owned
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) in substantially the same relative proportions
by persons who, immediately prior to such transaction,
beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) at least 51% of the
securities entitled to vote generally in the election of
directors of the Bank;
(ii) the acquisition of all or substantially all of the
assets of the Bank or beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 25% or more of
the outstanding securities of the Bank entitled to vote generally
in the election of directors by any person or by any persons
acting in concert, or approval by the shareholders of the Bank of
any transaction which would result in such an acquisition;
(iii) a complete liquidation or dissolution of the Bank, or
approval by the shareholders of the Bank of a plan for such
liquidation or dissolution;
(iv) the occurrence of any event if, immediately following
such event, at least 50% of the members of the Board do not
belong to any of the following groups:
(A) individuals who were members of the Board on the
date of this Agreement; or
(B) individuals who first became members of the Board
after the date of this Agreement either:
(1) upon election to serve as a member of the Board by
affirmative vote of three-quarters of the members of such
board, or of a nominating committee thereof, in office at
the time of such first election; or
(2) upon election by the shareholders of the Board to
serve as a member of the Board, but only if nominated for
election by affirmative vote of three-quarters of the
members of the board of directors of the Board, or of a
nominating committee thereof, in office at the time of such
first nomination;
provided, however, that such individual's election or
nomination did not result from an actual or threatened
election contest (within the meaning of Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents
(within the meaning of Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) other than by or on
behalf of the Board of the Bank; or
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(v) any event which would be described in section 11(a)(i),
(ii), (iii) or (iv) if the term "Company" were substituted for
the term "Bank" therein and the term "Company Board" were
substituted for the term "Board" therein.
In no event, however, shall a Change in Control be deemed to have occurred as a
result of any acquisition of securities or assets of the Company, the Bank, or a
subsidiary of either of them, by the Company, the Bank, or any subsidiary of
either of them, or by any employee benefit plan maintained by any of them. For
purposes of this section 11(a), the term "person" shall have the meaning
assigned to it under sections 13(d)(3) or 14(d)(2) of the Exchange Act.
(b) In the event that the Executive's employment with the Bank
terminates within eighteen months following a Change in Control for any reason
other than for "cause," as described in section 10, the Bank shall pay to the
Executive, in addition to the amounts payable pursuant to section 9, a severance
benefit in a lump sum payment, within 25 days after the later of the effective
time of such Change in Control or his termination of employment, equal to the
greater of (i) the sum of the amounts payable as salary pursuant to section 4
hereof during the Remaining Unexpired Employment Period and as additional cash
compensation pursuant to the terms of section 9(b)(vi) hereof, or (ii) three
times the annual average of the amount paid or payable to the Executive under
section 4 of this Agreement or the corresponding section of any prior employment
agreement with the Bank or its predecessor during the five preceding taxable
years of the Executive (or during the entire period of the Executive's
employment with the Bank or its predecessor if such period is less than five
years). The Bank shall also continue to provide to the Executive and to his
eligible dependents the benefits described in section 9(b)(iii) hereof for a
period of at least 36 months following the later of the effective time of such
Change in Control or his termination of employment.
SECTION 12. TAX INDEMNIFICATION.
(a) This section 12 shall apply if the Executive's employment
is terminated upon or following (i) a Change in Control (as defined in section
11 of this Agreement); or (ii) a change "in the ownership or effective control"
of the Company or the Bank or "in the ownership of a substantial portion of the
assets" of the Company or the Bank within the meaning of section 280G of the
Code. If this section 12 applies, then, if for any taxable year, the Executive
shall be liable for the payment of an excise tax under section 4999 of the Code
with respect to any payment in the nature of compensation made by the Bank or
any direct or indirect subsidiary or affiliate of the Bank to (or
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for the benefit of) the Executive, the Bank shall pay to the Executive an amount
equal to X determined under the following formula:
E x P
X=
----------------------------------------------
1 - [FI x (1-SLI)) + SLI + E + M]
where
E = the rate at which the excise tax is assessed under section
4999 of the Code;
P = the amount with respect to which such excise tax is
assessed, determined without regard to this section 12;
FI = the highest marginal rate of income tax applicable to the
Executive under the Code for the taxable year in question;
SLI = the sum of the highest marginal rates of income tax
applicable to the Executive under all applicable state and
local laws for the taxable year in question; and
M = the highest marginal rate of Medicare tax applicable to
the Executive under the Code for the taxable year in
question.
With respect to any payment in the nature of compensation that is made to (or
for the benefit of) the Executive under the terms of this Agreement, the
Executive's employment agreement with the Company, or otherwise, and on which an
excise tax under section 4999 of the Code will be assessed, the payment
determined under this section 12(a) shall be made to the Executive on the
earlier of (i) the date the Company, the Bank or any direct or indirect
subsidiary or affiliate of the Company or the Bank is required to withhold such
tax, or (ii) the date the tax is required to be paid by the Executive.
(b) Notwithstanding anything in this section 12 to the
contrary, in the event that the Executive's liability for the excise tax under
section 4999 of the Code for a taxable year is subsequently determined to be
different than the amount determined by the formula (X + P) x E, where X, P and
E have the meanings provided in section 12(a), the Executive or the Bank, as the
case may be, shall pay to the other party at the time that the amount of such
excise tax is finally determined, an appropriate amount, plus interest, such
that the payment made under section 12(a), when increased by the amount of the
payment made to the Executive under this section 12(b) by the Bank, or when
reduced by the amount of the payment made to the Bank under this section 12(b)
by the Executive, equals the amount that should have properly been paid to the
Executive under section 12(a). The interest paid under this section 12(b) shall
be determined at the rate provided under section 1274(b)(2)(B) of the Code. To
confirm that the proper amount, if any, was paid to the Executive under this
section 12, the Executive shall furnish to the Bank a copy of each tax return
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which reflects a liability for an excise tax payment made by the Bank, at least
20 days before the date on which such return is required to be filed with the
Internal Revenue Service.
SECTION 13. COVENANT NOT TO COMPETE.
The Executive hereby covenants and agrees that, in the event of his
termination of employment with the Bank prior to the expiration of the
Employment Period, for a period of one year following the date of his
termination of employment with the Bank (or, if less, for the Remaining
Unexpired Employment Period), he shall not, without the written consent of the
Bank, become an officer, employee, consultant, director or trustee of any
savings bank, savings and loan association, savings and loan holding company,
bank or bank holding company, or any direct or indirect subsidiary or affiliate
of any such entity, that entails working within any county in which the Bank
maintains an office; provided, however, that this section 13 shall not apply if
the Executive's employment is terminated for the reasons set forth in section
9(a).
SECTION 14. CONFIDENTIALITY.
Unless he obtains the prior written consent of the Bank, the Executive
shall keep confidential and shall refrain from using for the benefit of himself,
or any person or entity other than the Bank or any entity which is a subsidiary
of the Bank or of which the Bank is a subsidiary, any material document or
information obtained from the Bank, or from its parent or subsidiaries, in the
course of his employment with any of them concerning their properties,
operations or business (unless such document or information is readily
ascertainable from public or published information or trade sources or has
otherwise been made available to the public through no fault of his own) until
the same ceases to be material (or becomes so ascertainable or available);
provided, however, that nothing in this section 14 shall prevent the Executive,
with or without the Bank's consent, from participating in or disclosing
documents or information in connection with any judicial or administrative
investigation, inquiry or proceeding to the extent that such participation or
disclosure is required under applicable law.
SECTION 15. SOLICITATION.
The Executive hereby covenants and agrees that, for a period of one year
following his termination of employment with the Bank, he shall not, without the
written consent of the Bank, either directly or indirectly:
(a) solicit, offer employment to, or take any other action
intended, or that a reasonable person acting in like circumstances
would expect, to have the effect of causing any officer or employee of
the Bank or any of its subsidiaries or affiliates to terminate his
employment and accept employment or become affiliated with, or provide
services for compensation in any capacity whatsoever to, any savings
bank, savings and loan association, bank, bank holding company, savings
and loan holding company, or other institution engaged in the business
of accepting deposits, making loans or doing business within the
counties specified in section 13;
12
(b) provide any information, advice or recommendation with
respect to any such officer or employee of any savings bank, savings
and loan association, bank, bank holding company, savings and loan
holding company, or other institution engaged in the business of
accepting deposits, making loans or doing business within the counties
specified in section 13, that is intended, or that a reasonable person
acting in like circumstances would expect, to have the effect of
causing any officer or employee of the Bank or any of its subsidiaries
or affiliates to terminate his employment and accept employment or
become affiliated with, or provide services for compensation in any
capacity whatsoever to, any savings bank, savings and loan association,
bank, bank holding company, savings and loan holding company, or other
institution engaged in the business of accepting deposits, making loans
or doing business within the counties specified in section 13;
(c) solicit, provide any information, advice or recommendation
or take any other action intended, or that a reasonable person acting
in like circumstances would expect, to have the effect of causing any
customer of the Bank to terminate an existing business or commercial
relationship with the Bank.
SECTION 16. NO EFFECT ON EMPLOYEE BENEFIT PLANS OR PROGRAMS.
The termination of the Executive's employment during the term of this
Agreement or thereafter, whether by the Bank or by the Executive, shall have no
effect on the rights and obligations of the parties hereto under the Bank's
qualified or non-qualified retirement, pension, savings, thrift, profit-sharing
or stock bonus plans, group life, health (including hospitalization, medical and
major medical), dental, accident and long term disability insurance plans or
such other employee benefit plans or programs, or compensation plans or
programs, as may be maintained by, or cover employees of, the Bank from time to
time; provided, however, that nothing in this Agreement shall be deemed to
duplicate any compensation or benefits provided under any agreement, plan or
program covering the Executive to which the Bank is a party and any duplicative
amount payable under any such agreement, plan or program shall be applied as an
offset to reduce the amounts otherwise payable hereunder.
SECTION 17. SUCCESSORS AND ASSIGNS.
This Agreement will inure to the benefit of and be binding upon the
Executive, his legal representatives and testate or intestate distributees, and
the Bank and its successors and assigns, including any successor by merger or
consolidation or a statutory receiver or any other person or firm or corporation
to which all or substantially all of the assets and business of the Bank may be
sold or otherwise transferred. Failure of the Bank to obtain from any successor
its express written assumption of the Bank's obligations hereunder at least 60
days in advance of the scheduled effective date of any such succession shall be
deemed a material breach of this Agreement.
SECTION 18. NOTICES.
Any communication required or permitted to be given under this Agreement,
including any notice, direction, designation, consent, instruction, objection or
waiver, shall be in
13
writing and shall be deemed to have been given at such time as it is delivered
personally, or five days after mailing if mailed, postage prepaid, by registered
or certified mail, return receipt requested, addressed to such party at the
address listed below or at such other address as one such party may by written
notice specify to the other party:
If to the Executive:
Richard A. Ahl
At the address last appearing
on the personnel records of
the Executive
If to the Bank:
Cohoes Savings Bank
75 Remsen Street
Cohoes, New York 12047
Attention: President
with a copy to:
Silver, Freedman & Taff, L.L.P.
1100 New York Avenue
Washington, D.C. 20005-3934
Attention: Robert L. Freedman, P.C.
SECTION 19. INDEMNIFICATION FOR ATTORNEYS' FEES.
(a) The Bank shall indemnify, hold harmless and defend the
Executive against reasonable costs, including legal fees and expenses, incurred
by him in connection with or arising out of any action, suit or proceeding in
which he may be involved, as a result of his efforts, in good faith, to defend
or enforce the terms of this Agreement. For purposes of this Agreement, any
settlement agreement which provides for payment of any amounts in settlement of
the Bank's obligations hereunder shall be conclusive evidence of the Executive's
entitlement to indemnification hereunder, and any such indemnification payments
shall be in addition to amounts payable pursuant to such settlement agreement,
unless such settlement agreement expressly provides otherwise.
(b) The Bank's obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Bank may have against the Executive or others. In no event
shall the Executive be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the Executive under any of
the provisions of this Agreement, and such amounts shall not be reduced whether
or not the Executive obtains other employment. Unless it is determined that a
claim made by the Executive was either frivolous or
14
made in bad faith, the Bank agrees to pay as incurred, to the full extent
permitted by law, all legal fees and expenses which the Executive may reasonably
incur as a result of or in connection with his consultation with legal counsel
or arising out of any action, suit, proceeding or contest (regardless of the
outcome thereof) by the Bank, the Executive or others regarding the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any contest by the
Executive about the amount of any payment pursuant to this Agreement), plus in
each case interest on any delayed payment at the applicable Federal rate
provided for in section 7872(f)(2)(A) of the Code. This section 19(b) shall
apply whether such consultation, action, suit, proceeding or contest arises
before, on, after or as a result of a Change in Control.
SECTION 20. SEVERABILITY.
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
SECTION 21. WAIVER.
Failure to insist upon strict compliance with any of the terms, covenants
or conditions hereof shall not be deemed a waiver of such term, covenant, or
condition. A waiver of any provision of this Agreement must be made in writing,
designated as a waiver, and signed by the party against whom its enforcement is
sought. Any waiver or relinquishment of any right or power hereunder at any one
or more times shall not be deemed a waiver or relinquishment of such right or
power at any other time or times.
SECTION 22. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, and all of which shall constitute one and the same
Agreement.
SECTION 23. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the federal laws of the United States and, to the extent that
federal law is inapplicable, in accordance with the laws of the State of New
York applicable to contracts entered into and to be performed entirely within
the State of New York.
SECTION 24. HEADINGS AND CONSTRUCTION.
The headings of sections in this Agreement are for convenience of reference
only and are not intended to qualify the meaning of any section. Any reference
to a section number shall refer to a section of this Agreement, unless otherwise
stated.
15
SECTION 25. ENTIRE AGREEMENT; MODIFICATIONS.
This instrument contains the entire agreement of the parties relating to
the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof. No modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
SECTION 26. NON-DUPLICATION.
In the event that the Executive shall perform services for the Company or
any other direct or indirect subsidiary or affiliate of the Bank, it is intended
that any compensation or benefits provided to the Executive by such other
employer shall not duplicate the compensation or benefits provided under this
Agreement. The compensation and benefits payable under this Agreement shall be
reduced to the extent necessary to effectuate this intention.
SECTION 27. REQUIRED REGULATORY PROVISIONS.
Notwithstanding anything herein contained to the contrary, any payments to
the Executive by the Bank, whether pursuant to this Agreement or otherwise, are
subject to and conditioned upon their compliance with section 18(k) of the
Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and any regulations
promulgated thereunder.
16
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed and
the Executive has hereunto set his hand, all as of the day and year first above
written.
----------------------------------------
EXECUTIVE
ATTEST: COHOES SAVINGS BANK
By_____________________________ By____________________________________
____________________ Name:
____________________________ Its:
17
[Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF __________ )
On this ________ day of ____________________, 1998, before me
personally came _____________________, to me known, and known to me to be the
individual described in the foregoing instrument, who, being by me duly sworn,
did depose and say that he resides at the address set forth in said instrument,
and that he signed his name to the foregoing instrument.
-----------------------------------
Notary Public
My commission expires:
- --------------------------
18
STATE OF NEW YORK )
) ss.:
COUNTY OF __________ )
On this ________ day of ____________________, 1998, before me
personally came ___________, to me known, who, being by me duly sworn, did
depose and say that he is the _______________________ of _____________________,
the _____________________ State chartered stock savings bank described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such seal; that it was
so affixed by order of the Board of Directors of said corporation; and that he
or she signed his name thereto by like order.
-----------------------------------
Notary Public
My commission expires:
- --------------------------
19
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
________ ___, 1998 by and between Cohoes Savings Bank, a state-chartered savings
bank organized and existing under the laws of the State of New York (the
"Bank"), and Harry L. Robinson (the "Executive").
W I T N E S S E T H :
WHEREAS, the Executive currently serves as the President and Chief
Executive Officer of the Bank and as the President and Chief Executive Officer
of Cohoes Bancorp, Inc. (the "Company"), and effective as of the date of this
Agreement, the Bank has converted from mutual to capital stock form and has
become the wholly owned subsidiary of the Company; and
WHEREAS, the Bank desires to assure for itself the continued availability
of the Executive's services as provided in this Agreement, and the Board of
Directors of the Bank (the "Board") recognizes the need for the Executive to be
able to perform such services with a minimum of personal distraction in the
event of a pending or threatened Change in Control (as hereinafter defined); and
WHEREAS, the Executive is willing to continue to serve the Bank on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and conditions hereinafter set forth, the Bank and the Executive hereby agree as
follows:
SECTION 1. EMPLOYMENT.
The Bank agrees to continue to employ the Executive, and the Executive
hereby agrees to such continued employment, during the period and upon the terms
and conditions set forth in this Agreement.
SECTION 2. EMPLOYMENT PERIOD; REMAINING UNEXPIRED EMPLOYMENT PERIOD.
(a) The terms and conditions of this Agreement shall be and
remain in effect during the period of employment established under this section
2 ("Employment Period"). The Employment Period shall be for an initial term of
three years beginning on the date of this Agreement and ending on the third
anniversary date of this Agreement (each, an "Anniversary Date"), plus such
extensions, if any, as are provided pursuant to section 2(b).
1
(b) Except as provided in section 2(c), beginning on the date
of this Agreement, the Employment Period shall automatically be extended for one
additional day each day, unless either the Bank or the Executive elects not to
extend the Agreement further by giving written notice thereof to the other
party, in which case the Employment Period shall end on the third anniversary of
the date on which such written notice is given. For all purposes of this
Agreement, the term "Remaining Unexpired Employment Period" as of any date shall
mean the period beginning on such date and ending on the last day of the
Employment Period taking into account any extensions under this section 2(b).
Upon termination of the Executive's employment with the Bank for any reason
whatsoever, any daily extensions provided pursuant to this section 2(b), if not
theretofore discontinued, shall automatically cease.
(c) Nothing in this Agreement shall be deemed to prohibit the
Bank at any time from terminating the Executive's employment during the
Employment Period with or without notice for any reason; provided, however, that
the relative rights and obligations of the Bank and the Executive in the event
of any such termination shall be determined under this Agreement.
SECTION 3. DUTIES.
The Executive shall serve as President and Chief Executive Officer of the
Bank, having such power, authority and responsibility and performing such duties
as are prescribed by or under the By-Laws of the Bank and as are customarily
associated with such position. The Executive shall devote his full business time
and attention (other than during weekends, holidays, approved vacation periods,
and periods of illness or approved leaves of absence) to the business and
affairs of the Bank and shall use his best efforts to advance the interests of
the Bank.
SECTION 4. CASH COMPENSATION.
In consideration for the services to be rendered by the Executive
hereunder, the Bank shall pay to him a salary equal to the base salary from the
Company and the Bank in effect on the date of this Agreement, less the amount of
base salary actually paid to the Executive by the Company during the Employment
Period. The Executive's salary shall be payable in approximately equal
installments in accordance with the Bank's customary payroll practices for
senior officers. The Board shall review the Executive's annual rate of salary at
such times during the Employment Period as it deems appropriate, but not less
frequently than once every twelve months, and may, in its discretion, approve an
increase therein. In addition to salary, the Executive may receive other cash
compensation from the Bank for services hereunder at such times, in such amounts
and on such terms and conditions as the Board may determine from time to time.
SECTION 5. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
During the Employment Period, the Executive shall be treated as an employee
of the Bank and shall be entitled to participate in and receive benefits under
any and all qualified or non-qualified retirement, pension, savings,
profit-sharing or stock bonus plans, any and all group life, health (including
hospitalization, medical and major medical), dental, accident and long term
disability insurance plans, and any other employee benefit and compensation
plans (including, but
2
not limited to, any incentive compensation plans or programs, stock option and
appreciation rights plans and restricted stock plans) as may from time to time
be maintained by, or cover employees of, the Bank, in accordance with the terms
and conditions of such employee benefit plans and programs and compensation
plans and programs and consistent with the Bank's customary practices. In
addition, the Executive shall be entitled to receive such perquisites as are
customary for an individual employed in the Executive's position in a firm of
the size and nature of the Bank, including, but not limited to, the use of an
automobile and the payment of country club and other club fees and expenses.
SECTION 6. INDEMNIFICATION AND INSURANCE.
(a) During the Employment Period and for a period of six years
thereafter, the Bank shall cause the Executive to be covered by and named as an
insured under any policy or contract of insurance obtained by it to insure its
directors and officers against personal liability for acts or omissions in
connection with service as an officer or director of the Bank or service in
other capacities at the request of the Bank. The coverage provided to the
Executive pursuant to this section 6 shall be of the same scope and on the same
terms and conditions as the coverage (if any) provided to other officers or
directors of the Bank.
(b) To the maximum extent permitted under applicable law,
during the Employment Period and for a period of six years thereafter, the Bank
shall indemnify the Executive against and hold him harmless from any costs,
liabilities, losses and exposures to the fullest extent and on the most
favorable terms and conditions that similar indemnification is offered to any
director or officer of the Bank or any subsidiary or affiliate thereof.
SECTION 7. OUTSIDE ACTIVITIES.
The Executive may serve as a member of the boards of directors of such
business, community and charitable organizations as he may disclose to and as
may be approved by the Board (which approval shall not be unreasonably
withheld); provided, however, that such service shall not materially interfere
with the performance of his duties under this Agreement. The Executive may also
engage in personal business and investment activities which do not materially
interfere with the performance of his duties hereunder; provided, however, that
such activities are not prohibited under any code of conduct or investment or
securities trading policy established by the Bank and generally applicable to
all similarly situated Executives. The Executive may also serve as an officer or
director of the Company on such terms and conditions as the Company and the Bank
may mutually agree upon, and such service shall not be deemed to materially
interfere with the Executive's performance of his duties hereunder or otherwise
result in a material breach of this Agreement. If the Executive is discharged or
suspended, or is subject to any regulatory prohibition or restriction with
respect to participation in the affairs of the Company, he shall continue to
perform services for the Bank in accordance with this Agreement but shall not
directly or indirectly provide services to or participate in the affairs of the
Company in a manner inconsistent with the terms of such discharge or suspension
or any applicable regulatory order.
3
SECTION 8. WORKING FACILITIES AND EXPENSES.
The Executive's principal place of employment shall be at the Bank's
executive offices located in Cohoes, New York, or at such other location within
50 miles of the address at which the Bank shall maintain its principal executive
offices, or at such other location as the Bank and the Executive may mutually
agree upon. The Bank shall provide the Executive at his principal place of
employment with a private office, secretarial services and other support
services and facilities suitable to his position with the Bank and necessary or
appropriate in connection with the performance of his assigned duties under this
Agreement. The Bank shall reimburse the Executive for his ordinary and necessary
business expenses, including, without limitation, the Executive's travel and
entertainment expenses incurred in connection with the performance of his duties
under this Agreement, in each case upon presentation to the Bank of an itemized
account of such expenses in such form as the Bank may reasonably require.
SECTION 9. TERMINATION OF EMPLOYMENT WITH BENEFITS.
(a) The Executive shall be entitled to the benefits described
in section 9(b) in the event that:
(i) his employment with the Bank terminates during the
Employment Period as a result of the Executive's voluntary
resignation within 90 days following:
(A) the failure of the Board to appoint or re-appoint
or elect or re-elect the Executive to the position with the
Bank stated in section 3 of this Agreement (or a more senior
office);
(B) if the Executive is a member of the Board, the
failure of the shareholders of the Bank to elect or re-elect
the Executive to the Board or the failure of the Board (or
the nominating committee thereof) to nominate the Executive
for such election or re-election;
(C) the expiration of a 30-day period following the
date on which the Executive gives written notice to the Bank
of its material failure, whether by amendment of the Bank's
Restated Organization Certificate, the Bank's By-Laws,
action of the Board or the Bank's shareholders or otherwise,
to vest in the Executive the functions, duties, or
responsibilities prescribed in section 3 of this Agreement,
unless, during such 30-day period, the Bank cures such
failure;
(D) the expiration of a 30-day period following the
date on which the Executive gives written notice to the Bank
of its material breach of any term, condition or covenant
contained in this Agreement (including, without limitation,
any reduction of the Executive's rate of base salary in
effect from time to time and any change in the terms and
conditions of any compensation or benefit program in which
the Executive participates which, either individually or
together with other changes, has a material adverse effect
on the aggregate value of his total compensation package),
unless, during such 30-day period, the Bank cures such
failure; or
4
(E) a change in the Executive's principal place of
employment for a distance in excess of 50 miles from the
Bank's principal office in Cohoes, New York; or
(F) the liquidation, dissolution, bankruptcy, or
insolvency of the Bank, the Bank or any of their respective
subsidiaries or affiliates; or
(ii) the Executive's employment with the Bank is terminated
by the Bank during the Employment Period for any reason other
than for "cause," as provided in section 10(a).
(b) Upon the occurrence of any of the events described in
section 9(a) of this Agreement, the Bank shall pay and provide to the Executive
(or, in the event of his death, to his estate):
(i) his earned but unpaid salary (including, without
limitation, all items which constitute wages under applicable law
and the payment of which is not otherwise provided for in this
section 9(b)) as of the date of the termination of his employment
with the Bank, such payment to be made at the time and in the
manner prescribed by law applicable to the payment of wages but
in no event later than 30 days after termination of employment;
(ii) the benefits, if any, to which he is entitled as a
former employee under the employee benefit plans and programs and
compensation plans and programs maintained for the benefit of the
Bank's officers and employees;
(iii) continued group life, health (including
hospitalization, medical and major medical), dental, accident and
long term disability insurance benefits, in addition to that
provided pursuant to section 9(b)(ii), and after taking into
account the coverage provided by any subsequent employer, if and
to the extent necessary to provide for the Executive, for the
Remaining Unexpired Employment Period, coverage equivalent to the
coverage to which he would have been entitled under such plans
(as in effect on the date of his termination of employment, or,
if his termination of employment occurs after a Change of
Control, on the date of such Change of Control, whichever
benefits are greater), if he had continued working for the Bank
during the Remaining Unexpired Employment Period at the highest
annual rate of salary achieved during the Employment Period;
(iv) within 30 days following the Executive's termination of
employment with the Bank, a lump sum payment, in an amount equal
to the present value of the salary (excluding any additional
payments made to the Executive in lieu of the use of an
automobile) that the Executive would have earned if he had
continued working for the Bank during the Remaining Unexpired
Employment Period at the highest annual rate of salary achieved
during the Employment Period, where such present value is to be
determined using a discount rate equal to the applicable
short-term federal rate prescribed under section 1274(d) of the
Internal Revenue Code of 1986, as amended (the "Code"),
compounded using the compounding periods corresponding to the
Bank's regular payroll periods for its officers, such lump sum to
be paid in lieu of all other payments of salary provided for
under this Agreement in respect of the period following any such
termination;
5
(v) within 30 days following the Executive's termination of
employment with the Bank, a lump sum payment in an amount equal
to the present value of the additional employer contributions to
which he would have been entitled under the Cohoes Savings Bank
401(k) Savings and Profit-Sharing Plan, the Cohoes Bancorp, Inc.
Employee Stock Ownership Plan (together with the defined
contribution portion of the Benefit Restoration Plan of Cohoes
Bancorp, Inc., or any other supplemental defined contribution
plan) and any and all other qualified and non-qualified defined
contribution plans maintained by, or covering employees of, the
Bank as if he were 100% vested thereunder and had continued
working for the Bank during the Remaining Unexpired Employment
Period at the highest annual rate of salary achieved during the
Employment Period and making the maximum amount of employee
contributions, if any, required or permitted under such plan or
plans, such present value to be determined on the basis of a
discount rate, compounded using the compounding period that
corresponds to the frequency with which employer contributions
are made to the relevant plan, equal to the Applicable PBGC Rate;
(vi) within 30 days following the Executive's termination of
employment with the Bank, a lump sum payment in an amount equal
to the payments that would have been made (without discounting
for early payment) to the Executive under any cash bonus or
long-term or short-term cash incentive compensation plan
maintained by, or covering employees of, the Bank if he had
continued working for the Bank during the Remaining Unexpired
Employment Period and had earned the maximum bonus or incentive
award in each calendar year that ends during the Remaining
Unexpired Employment Period, such payments to be equal to the
product of:
(A) the maximum percentage rate at which an award was
ever available to the Executive under such incentive
compensation plan; multiplied by
(B) the salary that would have been paid to the
Executive during each such calendar year at the highest
annual rate of salary achieved during the Employment Period.
(vii) at the election of the Bank made within 30 days
following the occurrence of the event described in section 9(a),
upon the surrender of options or appreciation rights issued to
the Executive under any stock option and appreciation rights plan
or program maintained by, or covering employees of, the Bank, a
lump sum payment in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share
of stock of the same class as the stock subject to the
option or appreciation right, determined as of the date of
termination of employment, over (II) the exercise price per
share for such option or appreciation right, as specified in
or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which options
or appreciation rights are being surrendered.
6
For purposes of this section 9(b)(vii), the Executive shall
be deemed fully vested in all options and appreciation
rights under any stock option or appreciation rights plan or
program maintained by, or covering employees of, the Bank,
even if he is not vested under the terms of such plan or
program; and
(viii) at the election of the Bank made within 30 days
following the occurrence of the event described in section 9(a),
upon the surrender of any shares awarded to the Executive under
any restricted stock plan maintained by, or covering employees
of, the Bank, a lump sum payment in an amount equal to the
product of:
(A) the fair market value of a share of stock of the
same class of stock granted under such plan, determined as
of the date of the Executive's termination of employment;
multiplied by
(B) the number of shares which are being surrendered.
For purposes of this section 9(b)(viii), the Executive shall be
deemed fully vested in all shares awarded under any restricted
stock plan maintained by, or covering employees of, the Bank,
even if he is not vested under the terms of such plan.
The Bank and the Executive hereby stipulate that the damages which may be
incurred by the Executive following any such termination of employment are not
capable of accurate measurement as of the date first above written and that the
payments and benefits contemplated by this section 9(b) constitute reasonable
damages under the circumstances and shall be payable without any requirement of
proof of actual damage and without regard to the Executive's efforts, if any, to
mitigate damages. The Bank and the Executive further agree that the Bank may
condition the payments and benefits (if any) due under sections 9(b)(iii), (iv),
(v) and (vi) on the receipt of the Executive's resignation from any and all
positions which he holds as an officer, director or committee member with
respect to the Bank or any of its subsidiaries or affiliates.
SECTION 10. TERMINATION WITHOUT ADDITIONAL BANK LIABILITY.
In the event that the Executive's employment with the Bank shall terminate
during the Employment Period on account of:
(a) the discharge of the Executive for "cause," which, for purposes of
this Agreement, shall mean a discharge because the Board determines that the
Executive: (i) has intentionally failed to perform his assigned duties under
this Agreement (including, for these purposes, the Executive's inability to
perform such duties as a result of drug or alcohol dependency); (ii) has
intentionally engaged in dishonest or illegal conduct in connection with his
performance of services for the Bank or has been convicted of a felony; (iii)
has willfully violated, in any material respect, any law, rule, regulation,
written agreement or final cease-and-desist order with respect to his
performance of services for the Bank, as determined by the Board; or (iv) has
intentionally breached the material terms of this Agreement;
7
(b) the Executive's voluntary resignation from employment with the Bank
for reasons other than those specified in section 9(a)(i); or
(c) the death of the Executive while employed by the Bank, or the
termination of the Executive's employment because of "total and permanent
disability" within the meaning of the Company's or the Bank's long-term
disability plan for employees; then the Bank shall have no further obligations
under this Agreement, other than the payment to the Executive of his earned but
unpaid salary as of the date of the termination of his employment and the
provision of such other benefits, if any, to which he is entitled as a former
employee under the Bank's employee benefit plans and programs and compensation
plans and programs.
For purposes of this section 10, no act or failure to act, on the part of
the Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Bank. Any act,
or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the written advice of counsel for the Bank
shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Bank. Prior to the date
on which a Change in Control occurs, the cessation of employment of the
Executive shall not be deemed to be for "cause" within the meaning of section
10(a) unless and until there shall have been delivered to the Executive a copy
of a resolution duly adopted by the affirmative vote of three-fourths of the
members of the Board at a meeting of the Board called and held for such purpose
(after reasonable notice is provided to the Executive and the Executive is given
an opportunity, together with counsel, to be heard before the Board), finding
that, in the good faith opinion of the Board, the Executive is guilty of the
conduct described in section 10(a) above, and specifying the particulars thereof
in detail. On and after the date that a Change in Control occurs, a
determination under this section 10 shall require the affirmative vote of at
least three-fourths of the members of the Board acting in good faith, and such
vote shall not be made prior to the expiration of a 60-day period following the
date on which the Board shall, by written notice to the Executive, furnish to
him a statement of its grounds for proposing to make such determination, during
which period the Executive shall be afforded a reasonable opportunity to make
oral and written presentations to the members of the Board, and to be
represented by his legal counsel at such presentations to refute the grounds for
the proposed determination.
SECTION 11. TERMINATION UPON OR FOLLOWING A CHANGE IN CONTROL.
(a) A Change in Control of the Bank ("Change in Control")
shall be deemed to have occurred upon the happening of any of the following
events:
(i) approval by the shareholders of the Bank of a
transaction that would result and does result in the
reorganization, merger or consolidation of the Bank,
respectively, with one or more other persons, other than a
transaction following which:
(A) at least 51% of the equity ownership interests of
the entity resulting from such transaction are beneficially
owned (within the meaning of Rule 13d-3 promulgated
8
under the Securities Exchange Act of 1934, as amended
("Exchange Act")) in substantially the same relative
proportions by persons who, immediately prior to such
transaction, beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) at least 51% of
the outstanding equity ownership interests in the Bank; and
(B) at least 51% of the securities entitled to vote
generally in the election of directors of the entity
resulting from such transaction are beneficially owned
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) in substantially the same relative proportions
by persons who, immediately prior to such transaction,
beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) at least 51% of the
securities entitled to vote generally in the election of
directors of the Bank;
(ii) the acquisition of all or substantially all of the
assets of the Bank or beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 25% or more of
the outstanding securities of the Bank entitled to vote generally
in the election of directors by any person or by any persons
acting in concert, or approval by the shareholders of the Bank of
any transaction which would result in such an acquisition;
(iii) a complete liquidation or dissolution of the Bank, or
approval by the shareholders of the Bank of a plan for such
liquidation or dissolution;
(iv) the occurrence of any event if, immediately following
such event, at least 50% of the members of the Board do not
belong to any of the following groups:
(A) individuals who were members of the Board on the
date of this Agreement; or
(B) individuals who first became members of the Board
after the date of this Agreement either:
(1) upon election to serve as a member of the Board by
affirmative vote of three-quarters of the members of such
board, or of a nominating committee thereof, in office at
the time of such first election; or
(2) upon election by the shareholders of the Board to
serve as a member of the Board, but only if nominated for
election by affirmative vote of three-quarters of the
members of the board of directors of the Board, or of a
nominating committee thereof, in office at the time of such
first nomination;
provided, however, that such individual's election or
nomination did not result from an actual or threatened
election contest (within the meaning of Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents
(within the meaning of Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) other than by or on
behalf of the Board of the Bank; or
9
(v) any event which would be described in section 11(a)(i),
(ii), (iii) or (iv) if the term "Company" were substituted for
the term "Bank" therein and the term "Company Board" were
substituted for the term "Board" therein.
In no event, however, shall a Change in Control be deemed to have occurred as a
result of any acquisition of securities or assets of the Company, the Bank, or a
subsidiary of either of them, by the Company, the Bank, or any subsidiary of
either of them, or by any employee benefit plan maintained by any of them. For
purposes of this section 11(a), the term "person" shall have the meaning
assigned to it under sections 13(d)(3) or 14(d)(2) of the Exchange Act.
(b) In the event that the Executive's employment with the Bank
terminates within eighteen months following a Change in Control for any reason
other than for "cause," as described in section 10, the Bank shall pay to the
Executive, in addition to the amounts payable pursuant to section 9, a severance
benefit in a lump sum payment, within 25 days after the later of the effective
time of such Change in Control or his termination of employment, equal to the
greater of (i) the sum of the amounts payable as salary pursuant to section 4
hereof during the Remaining Unexpired Employment Period and as additional cash
compensation pursuant to the terms of section 9(b)(vi) hereof, or (ii) three
times the annual average of the amount paid or payable to the Executive under
section 4 of this Agreement or the corresponding section of any prior employment
agreement with the Bank or its predecessor during the five preceding taxable
years of the Executive (or during the entire period of the Executive's
employment with the Bank or its predecessor if such period is less than five
years). The Bank shall also continue to provide to the Executive and to his
eligible dependents the benefits described in section 9(b)(iii) hereof for a
period of at least 36 months following the later of the effective time of such
Change in Control or his termination of employment.
SECTION 12. TAX INDEMNIFICATION.
(a) This section 12 shall apply if the Executive's employment
is terminated upon or following (i) a Change in Control (as defined in section
11 of this Agreement); or (ii) a change "in the ownership or effective control"
of the Company or the Bank or "in the ownership of a substantial portion of the
assets" of the Company or the Bank within the meaning of section 280G of the
Code. If this section 12 applies, then, if for any taxable year, the Executive
shall be liable for the payment of an excise tax under section 4999 of the Code
with respect to any payment in the nature of compensation made by the Bank or
any direct or indirect subsidiary or affiliate of the Bank to (or
10
for the benefit of) the Executive, the Bank shall pay to the Executive an amount
equal to X determined under the following formula:
E x P
X=
----------------------------------------------
1 - [FI x (1-SLI)) + SLI + E + M]
where
E = the rate at which the excise tax is assessed under section
4999 of the Code;
P = the amount with respect to which such excise tax is
assessed, determined without regard to this section 12;
FI = the highest marginal rate of income tax applicable to the
Executive under the Code for the taxable year in question;
SLI = the sum of the highest marginal rates of income tax
applicable to the Executive under all applicable state and
local laws for the taxable year in question; and
M = the highest marginal rate of Medicare tax applicable to
the Executive under the Code for the taxable year in
question.
With respect to any payment in the nature of compensation that is made to (or
for the benefit of) the Executive under the terms of this Agreement, the
Executive's employment agreement with the Company, or otherwise, and on which an
excise tax under section 4999 of the Code will be assessed, the payment
determined under this section 12(a) shall be made to the Executive on the
earlier of (i) the date the Company, the Bank or any direct or indirect
subsidiary or affiliate of the Company or the Bank is required to withhold such
tax, or (ii) the date the tax is required to be paid by the Executive.
(b) Notwithstanding anything in this section 12 to the
contrary, in the event that the Executive's liability for the excise tax under
section 4999 of the Code for a taxable year is subsequently determined to be
different than the amount determined by the formula (X + P) x E, where X, P and
E have the meanings provided in section 12(a), the Executive or the Bank, as the
case may be, shall pay to the other party at the time that the amount of such
excise tax is finally determined, an appropriate amount, plus interest, such
that the payment made under section 12(a), when increased by the amount of the
payment made to the Executive under this section 12(b) by the Bank, or when
reduced by the amount of the payment made to the Bank under this section 12(b)
by the Executive, equals the amount that should have properly been paid to the
Executive under section 12(a). The interest paid under this section 12(b) shall
be determined at the rate provided under section 1274(b)(2)(B) of the Code. To
confirm that the proper amount, if any, was paid to the Executive under this
section 12, the Executive shall furnish to the Bank a copy of each tax return
11
which reflects a liability for an excise tax payment made by the Bank, at least
20 days before the date on which such return is required to be filed with the
Internal Revenue Service.
SECTION 13. COVENANT NOT TO COMPETE.
The Executive hereby covenants and agrees that, in the event of his
termination of employment with the Bank prior to the expiration of the
Employment Period, for a period of one year following the date of his
termination of employment with the Bank (or, if less, for the Remaining
Unexpired Employment Period), he shall not, without the written consent of the
Bank, become an officer, employee, consultant, director or trustee of any
savings bank, savings and loan association, savings and loan holding company,
bank or bank holding company, or any direct or indirect subsidiary or affiliate
of any such entity, that entails working within any county in which the Bank
maintains an office; provided, however, that this section 13 shall not apply if
the Executive's employment is terminated for the reasons set forth in section
9(a).
SECTION 14. CONFIDENTIALITY.
Unless he obtains the prior written consent of the Bank, the Executive
shall keep confidential and shall refrain from using for the benefit of himself,
or any person or entity other than the Bank or any entity which is a subsidiary
of the Bank or of which the Bank is a subsidiary, any material document or
information obtained from the Bank, or from its parent or subsidiaries, in the
course of his employment with any of them concerning their properties,
operations or business (unless such document or information is readily
ascertainable from public or published information or trade sources or has
otherwise been made available to the public through no fault of his own) until
the same ceases to be material (or becomes so ascertainable or available);
provided, however, that nothing in this section 14 shall prevent the Executive,
with or without the Bank's consent, from participating in or disclosing
documents or information in connection with any judicial or administrative
investigation, inquiry or proceeding to the extent that such participation or
disclosure is required under applicable law.
SECTION 15. SOLICITATION.
The Executive hereby covenants and agrees that, for a period of one year
following his termination of employment with the Bank, he shall not, without the
written consent of the Bank, either directly or indirectly:
(a) solicit, offer employment to, or take any other action
intended, or that a reasonable person acting in like circumstances
would expect, to have the effect of causing any officer or employee of
the Bank or any of its subsidiaries or affiliates to terminate his
employment and accept employment or become affiliated with, or provide
services for compensation in any capacity whatsoever to, any savings
bank, savings and loan association, bank, bank holding company, savings
and loan holding company, or other institution engaged in the business
of accepting deposits, making loans or doing business within the
counties specified in section 13;
12
(b) provide any information, advice or recommendation with
respect to any such officer or employee of any savings bank, savings
and loan association, bank, bank holding company, savings and loan
holding company, or other institution engaged in the business of
accepting deposits, making loans or doing business within the counties
specified in section 13, that is intended, or that a reasonable person
acting in like circumstances would expect, to have the effect of
causing any officer or employee of the Bank or any of its subsidiaries
or affiliates to terminate his employment and accept employment or
become affiliated with, or provide services for compensation in any
capacity whatsoever to, any savings bank, savings and loan association,
bank, bank holding company, savings and loan holding company, or other
institution engaged in the business of accepting deposits, making loans
or doing business within the counties specified in section 13;
(c) solicit, provide any information, advice or recommendation
or take any other action intended, or that a reasonable person acting
in like circumstances would expect, to have the effect of causing any
customer of the Bank to terminate an existing business or commercial
relationship with the Bank.
SECTION 16. NO EFFECT ON EMPLOYEE BENEFIT PLANS OR PROGRAMS.
The termination of the Executive's employment during the term of this
Agreement or thereafter, whether by the Bank or by the Executive, shall have no
effect on the rights and obligations of the parties hereto under the Bank's
qualified or non-qualified retirement, pension, savings, thrift, profit-sharing
or stock bonus plans, group life, health (including hospitalization, medical and
major medical), dental, accident and long term disability insurance plans or
such other employee benefit plans or programs, or compensation plans or
programs, as may be maintained by, or cover employees of, the Bank from time to
time; provided, however, that nothing in this Agreement shall be deemed to
duplicate any compensation or benefits provided under any agreement, plan or
program covering the Executive to which the Bank is a party and any duplicative
amount payable under any such agreement, plan or program shall be applied as an
offset to reduce the amounts otherwise payable hereunder.
SECTION 17. SUCCESSORS AND ASSIGNS.
This Agreement will inure to the benefit of and be binding upon the
Executive, his legal representatives and testate or intestate distributees, and
the Bank and its successors and assigns, including any successor by merger or
consolidation or a statutory receiver or any other person or firm or corporation
to which all or substantially all of the assets and business of the Bank may be
sold or otherwise transferred. Failure of the Bank to obtain from any successor
its express written assumption of the Bank's obligations hereunder at least 60
days in advance of the scheduled effective date of any such succession shall be
deemed a material breach of this Agreement.
SECTION 18. NOTICES.
Any communication required or permitted to be given under this Agreement,
including any notice, direction, designation, consent, instruction, objection or
waiver, shall be in
13
writing and shall be deemed to have been given at such time as it is delivered
personally, or five days after mailing if mailed, postage prepaid, by registered
or certified mail, return receipt requested, addressed to such party at the
address listed below or at such other address as one such party may by written
notice specify to the other party:
If to the Executive:
Harry L. Robinson
At the address last appearing
on the personnel records of
the Executive
If to the Bank:
Cohoes Savings Bank
75 Remsen Street
Cohoes, New York 12047
Attention: President
with a copy to:
Silver, Freedman & Taff, L.L.P.
1100 New York Avenue
Washington, D.C. 20005-3934
Attention: Robert L. Freedman, P.C.
SECTION 19. INDEMNIFICATION FOR ATTORNEYS' FEES.
(a) The Bank shall indemnify, hold harmless and defend the
Executive against reasonable costs, including legal fees and expenses, incurred
by him in connection with or arising out of any action, suit or proceeding in
which he may be involved, as a result of his efforts, in good faith, to defend
or enforce the terms of this Agreement. For purposes of this Agreement, any
settlement agreement which provides for payment of any amounts in settlement of
the Bank's obligations hereunder shall be conclusive evidence of the Executive's
entitlement to indemnification hereunder, and any such indemnification payments
shall be in addition to amounts payable pursuant to such settlement agreement,
unless such settlement agreement expressly provides otherwise.
(b) The Bank's obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Bank may have against the Executive or others. In no event
shall the Executive be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the Executive under any of
the provisions of this Agreement, and such amounts shall not be reduced whether
or not the Executive obtains other employment. Unless it is determined that a
claim made by the Executive was either frivolous or
14
made in bad faith, the Bank agrees to pay as incurred, to the full extent
permitted by law, all legal fees and expenses which the Executive may reasonably
incur as a result of or in connection with his consultation with legal counsel
or arising out of any action, suit, proceeding or contest (regardless of the
outcome thereof) by the Bank, the Executive or others regarding the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any contest by the
Executive about the amount of any payment pursuant to this Agreement), plus in
each case interest on any delayed payment at the applicable Federal rate
provided for in section 7872(f)(2)(A) of the Code. This section 19(b) shall
apply whether such consultation, action, suit, proceeding or contest arises
before, on, after or as a result of a Change in Control.
SECTION 20. SEVERABILITY.
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
SECTION 21. WAIVER.
Failure to insist upon strict compliance with any of the terms, covenants
or conditions hereof shall not be deemed a waiver of such term, covenant, or
condition. A waiver of any provision of this Agreement must be made in writing,
designated as a waiver, and signed by the party against whom its enforcement is
sought. Any waiver or relinquishment of any right or power hereunder at any one
or more times shall not be deemed a waiver or relinquishment of such right or
power at any other time or times.
SECTION 22. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, and all of which shall constitute one and the same
Agreement.
SECTION 23. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the federal laws of the United States and, to the extent that
federal law is inapplicable, in accordance with the laws of the State of New
York applicable to contracts entered into and to be performed entirely within
the State of New York.
SECTION 24. HEADINGS AND CONSTRUCTION.
The headings of sections in this Agreement are for convenience of reference
only and are not intended to qualify the meaning of any section. Any reference
to a section number shall refer to a section of this Agreement, unless otherwise
stated.
15
SECTION 25. ENTIRE AGREEMENT; MODIFICATIONS.
This instrument contains the entire agreement of the parties relating to
the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof. No modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
SECTION 26. NON-DUPLICATION.
In the event that the Executive shall perform services for the Company or
any other direct or indirect subsidiary or affiliate of the Bank, it is intended
that any compensation or benefits provided to the Executive by such other
employer shall not duplicate the compensation or benefits provided under this
Agreement. The compensation and benefits payable under this Agreement shall be
reduced to the extent necessary to effectuate this intention.
SECTION 27. REQUIRED REGULATORY PROVISIONS.
Notwithstanding anything herein contained to the contrary, any payments to
the Executive by the Bank, whether pursuant to this Agreement or otherwise, are
subject to and conditioned upon their compliance with section 18(k) of the
Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and any regulations
promulgated thereunder.
16
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed and
the Executive has hereunto set his hand, all as of the day and year first above
written.
----------------------------------------
EXECUTIVE
ATTEST: COHOES SAVINGS BANK
By_____________________________ By____________________________________
____________________ Name:
____________________________ Its:
17
[Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF __________ )
On this ________ day of ____________________, 1998, before me
personally came _____________________, to me known, and known to me to be the
individual described in the foregoing instrument, who, being by me duly sworn,
did depose and say that he resides at the address set forth in said instrument,
and that he signed his name to the foregoing instrument.
-----------------------------------
Notary Public
My commission expires:
- --------------------------
18
STATE OF NEW YORK )
) ss.:
COUNTY OF __________ )
On this ________ day of ____________________, 1998, before me
personally came ___________, to me known, who, being by me duly sworn, did
depose and say that he is the _______________________ of _____________________,
the _____________________ State chartered stock savings bank described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such seal; that it was
so affixed by order of the Board of Directors of said corporation; and that he
or she signed his name thereto by like order.
-----------------------------------
Notary Public
My commission expires:
- --------------------------
19
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
___________, 1998 by and between Cohoes Savings Bank, a state-chartered savings
bank organized and existing under the laws of the State of New York, the
("Bank"), and Albert J. Picchi (the "Executive").
W I T N E S S E T H :
WHEREAS, the Executive currently serves as the Vice President and Senior
Loan Officer of the Bank, and effective as of the date of this Agreement, the
Bank has converted from mutual to capital stock form and has become the wholly
owned subsidiary of Cohoes Bancorp, Inc. (the "Company"); and
WHEREAS, the Bank desires to assure for itself the continued availability
of the Executive's services as provided in this Agreement; and
WHEREAS, the Executive is willing to continue to serve the Bank on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and conditions hereinafter set forth, the Bank and the Executive hereby agree as
follows:
SECTION 1. EMPLOYMENT.
The Bank agrees to continue to employ the Executive, and the Executive
hereby agrees to such continued employment, during the period and upon the terms
and conditions set forth in this Agreement.
SECTION 2. EMPLOYMENT PERIOD; REMAINING UNEXPIRED EMPLOYMENT PERIOD.
(a) The terms and conditions of this Agreement shall be and
remain in effect during the period of employment established under this section
2 ("Employment Period"). The Employment Period shall be for an initial term of
two years beginning on the date of this Agreement and ending on the second
anniversary date of this Agreement (each, an "Anniversary Date"), plus such
extensions, if any, as are provided pursuant to section 2(b).
(b) Except as provided in section 2(c), beginning on the date
of this Agreement, the Employment Period shall automatically be extended for one
additional day each day, unless either the Bank or the Executive elects not to
extend the Agreement further by giving written notice thereof
1
to the other party, in which case the Employment Period shall end on the second
anniversary of the date on which such written notice is given. For all purposes
of this Agreement, the term "Remaining Unexpired Employment Period" as of any
date shall mean the period beginning on such date and ending on the last day of
the Employment Period taking into account any extensions under this section
2(b). Upon termination of the Executive's employment with the Bank for any
reason whatsoever, any daily extensions provided pursuant to this section 2(b),
if not theretofore discontinued, shall automatically cease.
(c) Nothing in this Agreement shall be deemed to prohibit the
Bank at any time from terminating the Executive's employment during the
Employment Period with or without notice for any reason; provided, however, that
the relative rights and obligations of the Bank and the Executive in the event
of any such termination shall be determined under this Agreement.
SECTION 3. DUTIES.
The Executive shall serve as Vice President and Senior Loan Officer of the
Bank, having such power, authority and responsibility and performing such duties
as are prescribed by or under the By-Laws of the Bank and as are customarily
associated with such position. The Executive shall devote his full business time
and attention (other than during weekends, holidays, approved vacation periods,
and periods of illness or approved leaves of absence) to the business and
affairs of the Bank and shall use his best efforts to advance the interests of
the Bank.
SECTION 4. CASH COMPENSATION.
In consideration for the services to be rendered by the Executive
hereunder, the Bank shall pay to him a salary equal to the base salary from the
Bank in effect on the date of this Agreement. The Executive's salary shall be
payable in approximately equal installments in accordance with the Bank's
customary payroll practices for senior officers. The Board shall review the
Executive's annual rate of salary at such times during the Employment Period as
it deems appropriate, but not less frequently than once every twelve months, and
may, in its discretion, approve an increase therein. In addition to salary, the
Executive may receive other cash compensation from the Bank for services
hereunder at such times, in such amounts and on such terms and conditions as the
Board may determine from time to time.
SECTION 5. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
During the Employment Period, the Executive shall be treated as an employee
of the Bank and shall be entitled to participate in and receive benefits under
any and all qualified or non-qualified retirement, pension, savings,
profit-sharing or stock bonus plans, any and all group life, health (including
hospitalization, medical and major medical), dental, accident and long term
disability insurance plans, and any other employee benefit and compensation
plans (including, but not limited to, any incentive compensation plans or
programs, stock option and appreciation rights plans and restricted stock plans)
as may from time to time be maintained by, or cover employees of, the Bank, in
accordance with the terms and conditions of such employee benefit plans and
programs and compensation plans and programs and consistent with the Bank's
customary practices. In
2
addition, the Executive shall be entitled to receive such perquisites as are
customary for an individual employed in the Executive's position in a firm of
the size and nature of the Bank.
SECTION 6. INDEMNIFICATION AND INSURANCE.
(a) During the Employment Period and for a period of six years
thereafter, the Bank shall cause the Executive to be covered by and named as an
insured under any policy or contract of insurance obtained by it to insure its
directors and officers against personal liability for acts or omissions in
connection with service as an officer or director of the Bank or service in
other capacities at the request of the Bank. The coverage provided to the
Executive pursuant to this section 6 shall be of the same scope and on the same
terms and conditions as the coverage (if any) provided to other officers or
directors of the Bank.
(b) To the maximum extent permitted under applicable law,
during the Employment Period and for a period of six years thereafter, the Bank
shall indemnify the Executive against and hold him harmless from any costs,
liabilities, losses and exposures to the fullest extent and on the most
favorable terms and conditions that similar indemnification is offered to any
director or officer of the Bank or any subsidiary or affiliate thereof.
SECTION 7. OUTSIDE ACTIVITIES.
The Executive may serve as a member of the boards of directors of such
business, community and charitable organizations as he may disclose to and as
may be approved by the Board (which approval shall not be unreasonably
withheld); provided, however, that such service shall not materially interfere
with the performance of his duties under this Agreement. The Executive may also
engage in personal business and investment activities which do not materially
interfere with the performance of his duties hereunder; provided, however, that
such activities are not prohibited under any code of conduct or investment or
securities trading policy established by the Bank and generally applicable to
all similarly situated Executives. If the Executive is discharged or suspended,
or is subject to any regulatory prohibition or restriction with respect to
participation in the affairs of the Company, he shall continue to perform
services for the Bank in accordance with this Agreement but shall not directly
or indirectly provide services to or participate in the affairs of the Company
in a manner inconsistent with the terms of such discharge or suspension or any
applicable regulatory order.
3
SECTION 8. WORKING FACILITIES AND EXPENSES.
The Executive's principal place of employment shall be at the Bank's
executive offices located in Cohoes, New York, or at such other location within
50 miles of the address at which the Bank shall maintain its principal executive
offices, or at such other location as the Bank and the Executive may mutually
agree upon. The Bank shall provide the Executive at his principal place of
employment with a private office, secretarial services and other support
services and facilities suitable to his position with the Bank and necessary or
appropriate in connection with the performance of his assigned duties under this
Agreement. The Bank shall reimburse the Executive for his ordinary and necessary
business expenses, including, without limitation, the Executive's travel and
entertainment expenses incurred in connection with the performance of his duties
under this Agreement, in each case upon presentation to the Bank of an itemized
account of such expenses in such form as the Bank may reasonably require.
SECTION 9. TERMINATION OF EMPLOYMENT WITH BENEFITS.
(a) The Executive shall be entitled to the benefits described
in section 9(b) in the event that:
(i) his employment with the Bank terminates during the
Employment Period as a result of the Executive's voluntary
resignation within 90 days following:
(A) the failure of the Board to appoint or re-appoint
or elect or re-elect the Executive to the position with the
Bank stated in section 3 of this Agreement (or a more senior
office);
(B) if the Executive is a member of the Board, the
failure of the shareholders of the Bank to elect or re-elect
the Executive to the Board or the failure of the Board (or
the nominating committee thereof) to nominate the Executive
for such election or re-election;
(C) the expiration of a 30-day period following the
date on which the Executive gives written notice to the Bank
of its material failure, whether by amendment of the Bank's
Restated Organization Certificate, the Bank's By-Laws,
action of the Board or the Bank's shareholders or otherwise,
to vest in the Executive the functions, duties, or
responsibilities prescribed in section 3 of this Agreement,
unless, during such 30-day period, the Bank cures such
failure;
(D) the expiration of a 30-day period following the
date on which the Executive gives written notice to the Bank
of its material breach of any term, condition or covenant
contained in this Agreement (including, without limitation,
any reduction of the Executive's rate of base salary in
effect from time to time and any change in the terms and
conditions of any compensation or benefit program in which
the Executive participates which, either individually or
together with other changes, has a material adverse effect
on the aggregate value of his total compensation package),
unless, during such 30-day period, the Bank cures such
failure; or
4
(E) a change in the Executive's principal place of
employment for a distance in excess of 50 miles from the
Bank's principal office in Cohoes, New York; or
(F) the liquidation, dissolution, bankruptcy, or
insolvency of the Bank, the Bank or any of their respective
subsidiaries or affiliates; or
(ii) the Executive's employment with the Bank is terminated
by the Bank during the Employment Period for any reason other
than for "cause," as provided in section 10(a).
(b) Upon the occurrence of any of the events described in
section 9(a) of this Agreement, the Bank shall pay and provide to the Executive
(or, in the event of his death, to his estate):
(i) his earned but unpaid salary (including, without
limitation, all items which constitute wages under applicable law
and the payment of which is not otherwise provided for in this
section 9(b)) as of the date of the termination of his employment
with the Bank, such payment to be made at the time and in the
manner prescribed by law applicable to the payment of wages but
in no event later than 30 days after termination of employment;
(ii) the benefits, if any, to which he is entitled as a
former employee under the employee benefit plans and programs and
compensation plans and programs maintained for the benefit of the
Bank's officers and employees;
(iii) continued group life, health (including
hospitalization, medical and major medical), dental, accident and
long term disability insurance benefits, in addition to that
provided pursuant to section 9(b)(ii), and after taking into
account the coverage provided by any subsequent employer, if and
to the extent necessary to provide for the Executive, for the
Remaining Unexpired Employment Period, coverage equivalent to the
coverage to which he would have been entitled under such plans
(as in effect on the date of his termination of employment), if
he had continued working for the Bank during the Remaining
Unexpired Employment Period at the highest annual rate of salary
achieved during the Employment Period;
(iv) within 30 days following the Executive's termination of
employment with the Bank, a lump sum payment, in an amount equal
to the present value of the salary (excluding any additional
payments made to the Executive in lieu of the use of an
automobile) that the Executive would have earned if he had
continued working for the Bank during the Remaining Unexpired
Employment Period at the highest annual rate of salary achieved
during the Employment Period, where such present value is to be
determined using a discount rate equal to the applicable
short-term federal rate prescribed under section 1274(d) of the
Internal Revenue Code of 1986, as amended (the "Code"),
compounded using the compounding periods corresponding to the
Bank's regular payroll periods for its officers, such lump sum to
be paid in lieu of all other payments of salary provided for
under this Agreement in respect of the period following any such
termination;
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(v) within 30 days following the Executive's termination of
employment with the Bank, a lump sum payment in an amount equal
to the present value of the additional employer contributions to
which he would have been entitled under the Cohoes Savings Bank
401(k) Savings and Profit-Sharing Plan, the Cohoes Savings Bank
Employee Stock Ownership Plan (together with the defined
contribution portion of the Benefit Restoration Plan of Cohoes
Bancorp, Inc. or any other supplemental defined contribution
plan) and any and all other qualified and non-qualified defined
contribution plans maintained by, or covering employees of, the
Bank as if he were 100% vested thereunder and had continued
working for the Bank during the Remaining Unexpired Employment
Period at the highest annual rate of salary achieved during the
Employment Period and making the maximum amount of employee
contributions, if any, required or permitted under such plan or
plans, such present value to be determined on the basis of a
discount rate, compounded using the compounding period that
corresponds to the frequency with which employer contributions
are made to the relevant plan, equal to the Applicable PBGC Rate;
(vi) within 30 days following the Executive's termination of
employment with the Bank, a lump sum payment in an amount equal
to the payments that would have been made (without discounting
for early payment) to the Executive under any cash bonus or
long-term or short-term cash incentive compensation plan
maintained by, or covering employees of, the Bank if he had
continued working for the Bank during the Remaining Unexpired
Employment Period and had earned the maximum bonus or incentive
award in each calendar year that ends during the Remaining
Unexpired Employment Period, such payments to be equal to the
product of:
(A) the maximum percentage rate at which an award was
ever available to the Executive under such incentive
compensation plan; multiplied by
(B) the salary that would have been paid to the
Executive during each such calendar year at the highest
annual rate of salary achieved during the Employment Period.
(vii) at the election of the Bank made within 30 days
following the occurrence of the event described in section 9(a),
upon the surrender of options or appreciation rights issued to
the Executive under any stock option and appreciation rights plan
or program maintained by, or covering employees of, the Bank, a
lump sum payment in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share
of stock of the same class as the stock subject to the
option or appreciation right, determined as of the date of
termination of employment, over (II) the exercise price per
share for such option or appreciation right, as specified in
or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which options
or appreciation rights are being surrendered.
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For purposes of this section 9(b)(vii), the Executive shall be
deemed fully vested in all options and appreciation rights under
any stock option or appreciation rights plan or program
maintained by, or covering employees of, the Bank, even if he is
not vested under the terms of such plan or program; and
(viii) at the election of the Bank made within 30 days
following the occurrence of the event described in section 9(a),
upon the surrender of any shares awarded to the Executive under
any restricted stock plan maintained by, or covering employees
of, the Bank, a lump sum payment in an amount equal to the
product of:
(A) the fair market value of a share of stock of the
same class of stock granted under such plan, determined as
of the date of the Executive's termination of employment;
multiplied by
(B) the number of shares which are being surrendered.
For purposes of this section 9(b)(viii), the Executive shall be
deemed fully vested in all shares awarded under any restricted
stock plan maintained by, or covering employees of, the Bank,
even if he is not vested under the terms of such plan.
The Bank and the Executive hereby stipulate that the damages which may be
incurred by the Executive following any such termination of employment are not
capable of accurate measurement as of the date first above written and that the
payments and benefits contemplated by this section 9(b) constitute reasonable
damages under the circumstances and shall be payable without any requirement of
proof of actual damage and without regard to the Executive's efforts, if any, to
mitigate damages. The Bank and the Executive further agree that the Bank may
condition the payments and benefits (if any) due under sections 9(b)(iii), (iv),
(v) and (vi) on the receipt of the Executive's resignation from any and all
positions which he holds as an officer, director or committee member with
respect to the Bank or any of its subsidiaries or affiliates.
SECTION 10. TERMINATION WITHOUT ADDITIONAL BANK LIABILITY.
In the event that the Executive's employment with the Bank shall terminate
during the Employment Period on account of:
(a) the discharge of the Executive for "cause," which, for purposes of
this Agreement, shall mean a discharge because the Board determines that the
Executive: (i) has intentionally failed to perform his assigned duties under
this Agreement (including, for these purposes, the Executive's inability to
perform such duties as a result of drug or alcohol dependency); (ii) has
intentionally engaged in dishonest or illegal conduct in connection with his
performance of services for the Bank or has been convicted of a felony; (iii)
has willfully violated, in any material respect, any law, rule, regulation,
written agreement or final cease-and-desist order with respect to his
performance of services for the Bank, as determined by the Board; or (iv) has
intentionally breached the material terms of this Agreement;
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(b) the Executive's voluntary resignation from employment with the Bank
for reasons other than those specified in section 9(a)(i); or
(c) the death of the Executive while employed by the Bank, or the
termination of the Executive's employment because of "total and permanent
disability" within the meaning of the Bank's long-term disability plan for
employees; then the Bank shall have no further obligations under this Agreement,
other than the payment to the Executive of his earned but unpaid salary as of
the date of the termination of his employment and the provision of such other
benefits, if any, to which he is entitled as a former employee under the Bank's
employee benefit plans and programs and compensation plans and programs.
For purposes of this section 10, no act or failure to act, on the part of
the Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Bank. Any act,
or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the written advice of counsel for the Bank
shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Bank. The cessation of
employment of the Executive shall not be deemed to be for "cause" within the
meaning of section 10(a) unless and until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote of
three-fourths of the members of the Board at a meeting of the Board called and
held for such purpose (after reasonable notice is provided to the Executive and
the Executive is given an opportunity, together with counsel, to be heard before
the Board), finding that, in the good faith opinion of the Board, the Executive
is guilty of the conduct described in section 10(a) above, and specifying the
particulars thereof in detail.
SECTION 11. COVENANT NOT TO COMPETE.
The Executive hereby covenants and agrees that, in the event of his
termination of employment with the Bank prior to the expiration of the
Employment Period, for a period of one year following the date of his
termination of employment with the Bank (or, if less, for the Remaining
Unexpired Employment Period), he shall not, without the written consent of the
Bank, become an officer, employee, consultant, director or trustee of any
savings bank, savings and loan association, savings and loan holding company,
bank or bank holding company, or any direct or indirect subsidiary or affiliate
of any such entity, that entails working within any county in which the Bank
maintains an office; provided, however, that this section 11 shall not apply if
the Executive's employment is terminated for the reasons set forth in section
9(a).
SECTION 12. CONFIDENTIALITY.
Unless he obtains the prior written consent of the Bank, the Executive
shall keep confidential and shall refrain from using for the benefit of himself,
or any person or entity other than the Bank or any entity which is a subsidiary
of the Bank or of which the Bank is a subsidiary, any material document or
information obtained from the Bank, or from its parent or subsidiaries, in the
course of his employment with any of them concerning their properties,
operations or business (unless such document or information is readily
ascertainable from public or published information
8
or trade sources or has otherwise been made available to the public through no
fault of his own) until the same ceases to be material (or becomes so
ascertainable or available); provided, however, that nothing in this section 12
shall prevent the Executive, with or without the Bank's consent, from
participating in or disclosing documents or information in connection with any
judicial or administrative investigation, inquiry or proceeding to the extent
that such participation or disclosure is required under applicable law.
SECTION 13. SOLICITATION.
The Executive hereby covenants and agrees that, for a period of one year
following his termination of employment with the Bank, he shall not, without the
written consent of the Bank, either directly or indirectly:
(a) solicit, offer employment to, or take any other action
intended, or that a reasonable person acting in like circumstances
would expect, to have the effect of causing any officer or employee of
the Bank or any of its subsidiaries or affiliates to terminate his
employment and accept employment or become affiliated with, or provide
services for compensation in any capacity whatsoever to, any savings
bank, savings and loan association, bank, bank holding company, savings
and loan holding company, or other institution engaged in the business
of accepting deposits, making loans or doing business within the
counties specified in section 11;
(b) provide any information, advice or recommendation with
respect to any such officer or employee of any savings bank, savings
and loan association, bank, bank holding company, savings and loan
holding company, or other institution engaged in the business of
accepting deposits, making loans or doing business within the counties
specified in section 11, that is intended, or that a reasonable person
acting in like circumstances would expect, to have the effect of
causing any officer or employee of the Bank or any of its subsidiaries
or affiliates to terminate his employment and accept employment or
become affiliated with, or provide services for compensation in any
capacity whatsoever to, any savings bank, savings and loan association,
bank, bank holding company, savings and loan holding company, or other
institution engaged in the business of accepting deposits, making loans
or doing business within the counties specified in section 11;
(c) solicit, provide any information, advice or recommendation
or take any other action intended, or that a reasonable person acting
in like circumstances would expect, to have the effect of causing any
customer of the Bank to terminate an existing business or commercial
relationship with the Bank.
SECTION 14. NO EFFECT ON EMPLOYEE BENEFIT PLANS OR PROGRAMS.
The termination of the Executive's employment during the term of this
Agreement or thereafter, whether by the Bank or by the Executive, shall have no
effect on the rights and obligations of the parties hereto under the Bank's
qualified or non-qualified retirement, pension, savings, thrift, profit-sharing
or stock bonus plans, group life, health (including hospitalization,
9
medical and major medical), dental, accident and long term disability insurance
plans or such other employee benefit plans or programs, or compensation plans or
programs, as may be maintained by, or cover employees of, the Bank from time to
time; provided, however, that nothing in this Agreement shall be deemed to
duplicate any compensation or benefits provided under any agreement, plan or
program covering the Executive to which the Bank is a party and any duplicative
amount payable under any such agreement, plan or program shall be applied as an
offset to reduce the amounts otherwise payable hereunder.
SECTION 15. SUCCESSORS AND ASSIGNS.
This Agreement will inure to the benefit of and be binding upon the
Executive, his legal representatives and testate or intestate distributees, and
the Bank and its successors and assigns, including any successor by merger or
consolidation or a statutory receiver or any other person or firm or corporation
to which all or substantially all of the assets and business of the Bank may be
sold or otherwise transferred. Failure of the Bank to obtain from any successor
its express written assumption of the Bank's obligations hereunder at least 60
days in advance of the scheduled effective date of any such succession shall be
deemed a material breach of this Agreement.
SECTION 16. NOTICES.
Any communication required or permitted to be given under this Agreement,
including any notice, direction, designation, consent, instruction, objection or
waiver, shall be in writing and shall be deemed to have been given at such time
as it is delivered personally, or five days after mailing if mailed, postage
prepaid, by registered or certified mail, return receipt requested, addressed to
such party at the address listed below or at such other address as one such
party may by written notice specify to the other party:
If to the Executive:
Albert J. Picchi
At the address last appearing
on the personnel records of
the Executive
If to the Bank:
75 Remsen Street
Cohoes, New York 12047
Attention: President
with a copy to:
Silver, Freedman & Taff, L.L.P.
1100 New York Avenue
Washington, D.C. 20005-3934
Attention: Robert L. Freedman, P.C.
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SECTION 17. INDEMNIFICATION FOR ATTORNEYS' FEES.
(a) The Bank shall indemnify, hold harmless and defend the
Executive against reasonable costs, including legal fees and expenses, incurred
by him in connection with or arising out of any action, suit or proceeding in
which he may be involved, as a result of his efforts, in good faith, to defend
or enforce the terms of this Agreement. For purposes of this Agreement, any
settlement agreement which provides for payment of any amounts in settlement of
the Bank's obligations hereunder shall be conclusive evidence of the Executive's
entitlement to indemnification hereunder, and any such indemnification payments
shall be in addition to amounts payable pursuant to such settlement agreement,
unless such settlement agreement expressly provides otherwise.
(b) The Bank's obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Bank may have against the Executive or others. In no event
shall the Executive be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the Executive under any of
the provisions of this Agreement, and such amounts shall not be reduced whether
or not the Executive obtains other employment. Unless it is determined that a
claim made by the Executive was either frivolous or made in bad faith, the Bank
agrees to pay as incurred, to the full extent permitted by law, all legal fees
and expenses which the Executive may reasonably incur as a result of or in
connection with his consultation with legal counsel or arising out of any
action, suit, proceeding or contest (regardless of the outcome thereof) by the
Bank, the Executive or others regarding the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee of performance
thereof (including as a result of any contest by the Executive about the amount
of any payment pursuant to this Agreement), plus in each case interest on any
delayed payment at the applicable Federal rate provided for in section
7872(f)(2)(A) of the Code.
SECTION 18. SEVERABILITY.
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
SECTION 19. WAIVER.
Failure to insist upon strict compliance with any of the terms, covenants
or conditions hereof shall not be deemed a waiver of such term, covenant, or
condition. A waiver of any provision of this Agreement must be made in writing,
designated as a waiver, and signed by the party against whom its enforcement is
sought. Any waiver or relinquishment of any right or power hereunder at any one
or more times shall not be deemed a waiver or relinquishment of such right or
power at any other time or times.
SECTION 20. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, and all of which shall constitute one and the same
Agreement.
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SECTION 21. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the federal laws of the United States and, to the extent that
federal law is inapplicable, in accordance with the laws of the State of New
York applicable to contracts entered into and to be performed entirely within
the State of New York.
SECTION 22. HEADINGS AND CONSTRUCTION.
The headings of sections in this Agreement are for convenience of reference
only and are not intended to qualify the meaning of any section. Any reference
to a section number shall refer to a section of this Agreement, unless otherwise
stated.
SECTION 23. ENTIRE AGREEMENT; MODIFICATIONS.
This instrument contains the entire agreement of the parties relating to
the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof. No modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
SECTION 24. NON-DUPLICATION.
In the event that the Executive shall perform services for the Company or
any other direct or indirect subsidiary or affiliate of the Bank, it is intended
that any compensation or benefits provided to the Executive by such other
employer shall not duplicate the compensation or benefits provided under this
Agreement. The compensation and benefits payable under this Agreement shall be
reduced to the extent necessary to effectuate this intention.
SECTION 25. REQUIRED REGULATORY PROVISIONS.
Notwithstanding anything herein contained to the contrary, any payments to
the Executive by the Bank, whether pursuant to this Agreement or otherwise, are
subject to and conditioned upon their compliance with section 18(k) of the
Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and any regulations
promulgated thereunder.
12
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed and
the Executive has hereunto set his hand, all as of the day and year first above
written.
----------------------------------------
EXECUTIVE
ATTEST: COHOES SAVINGS BANK
By_____________________________ By____________________________________
----------------- ------------------------
------------------- -------------------------------
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[Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF ____________ )
On this ________ day of ____________________, 1998, before me
personally came _______________, to me known, and known to me to be the
individual described in the foregoing instrument, who, being by me duly sworn,
did depose and say that he resides at the address set forth in said instrument,
and that he signed his name to the foregoing instrument.
-----------------------------------
Notary Public
My commission expires:
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14
STATE OF NEW YORK )
) ss.:
COUNTY OF _____________ )
On this ________ day of ____________________, 1998, before me
personally came ______________, to me known, who, being by me duly sworn, did
depose and say that he is the ___________________ of Cohoes Savings Bank, the
state chartered stock savings bank described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such seal; that it was so affixed by order of the Board of
Directors of said corporation; and that he or she signed his name thereto by
like order.
-----------------------------------
Notary Public
My commission expires:
- --------------------------
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