Exhibit 10.30
EMPLOYMENT AGREEMENT
between
THE MAHOPAC NATIONAL BANK
and
STEPHEN E. GARNER
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of the __ day of January, 1999, is by and
between THE MAHOPAC NATIONAL BANK, a national banking organization with its
principal offices located at 630 Route 6, Mahopac, New York 10541 (the "Bank"),
and STEPHEN E. GARNER, an individual residing at 30 Raymond Road, North Salem,
New York 10560 ("Employee").
WHEREAS, Employee has previously been employed and has accumulated
valuable experience as an executive officer of the Bank; and
WHEREAS, the Bank believes that the experience of Employee will provide
significant benefits to the Bank and therefore desires to retain the services of
the Employee; and
WHEREAS, the Bank desires to employ Employee as the Chief Executive
Officer of the Bank pursuant to the terms and conditions set forth herein; and
WHEREAS, Employee is willing to accept such employment pursuant to the
terms and conditions set forth herein;
NOW THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Employment. The Bank hereby employs the Employee and the Employee
hereby accepts employment upon the terms and conditions hereinafter set forth.
2. Duties of Employee. Employee will serve as the Chief Executive Officer
of the Bank or in any other comparable capacity as the Board of Directors of the
Bank may reasonably request, faithfully and to the best of his ability.
Notwithstanding the foregoing, the parties hereto hereby acknowledge and agree
that effective as of the "Closing Date," as defined below, Employee shall also
serve as the President of the Bank. In whatever capacity he is employed,
Employee agrees to devote his knowledge, energy, skill, and full time thereto,
and will perform from time to time such services, supervisory or otherwise, as
the Board of Directors of the Bank reasonably requests, without compensation
other than that for which provision is made in this Agreement.
3. Compensation.
A. During the first year of this Agreement, the Bank shall pay
Employee an annual salary in the amount of One Hundred Fifty Thousand and 00/100
Dollars ($150,000.00) per year, which is to be paid bi-weekly according to the
Bank's customary payroll practices, less usual withholding amounts. Throughout
the term of this Agreement, the Board of Directors may, in its sole discretion,
from time to time and not less frequently than once each year at Employee's
employment anniversary date, increase Employee's salary, and any fringe benefits
described below, based on the performance of Employee as determined by the Board
of Directors of the Bank. Notwithstanding the above, during any period in which
Employee shall be receiving disability benefits under coverage paid for by the
Bank or any of its affiliated entities, Employee's compensation provided for
herein shall be reduced by the amount of such disability benefits.
B. In addition to the foregoing, the Bank hereby agrees to pay
Employee the following amounts in accordance with the following terms and
conditions:
(i) if, and only if, Employee is employed by the Bank on
the date (the "Closing Date") that Letchworth Independent Bancshares Corporation
("LIBC") consummates its acquisition of at least fifty-eight percent (58%) of
the issued and outstanding shares of capital stock of the Bank, the Bank shall
pay Employee an amount equal to One Hundred Thousand and 00/100 Dollars
($100,000.00) on the Closing Date;
(ii) if, and only if, Employee is employed by the Bank on
the first anniversary of the Closing Date, the Bank shall pay Employee an amount
equal to Fifty Thousand and 00/100 Dollars ($50,000.00) on said anniversary
date; and
(iii) if, and only if, Employee is employed by the Bank on
the second anniversary of the Closing Date, the Bank shall pay Employee an
amount equal to Fifty Thousand and 00/100 Dollars ($50,000.00) on said
anniversary date.
C. Throughout the term of this Agreement, Employee shall receive
all fringe benefits that he is presently receiving, all as described on Exhibit
A annexed hereto; provided, however, that in the event that the Bank becomes a
wholly-owned subsidiary of LIBC, then from and after the effective date thereof,
Employee shall receive, in lieu of the fringe benefits then being provided by
the Bank, all fringe benefits that are available to employees of LIBC and its
subsidiaries, from time to time, including the defined benefit plan, 401(k)
plan, dental plan, and other welfare benefit plans maintained by The Bank of
Castile ("BofC").
D. In addition to the foregoing, the Bank hereby covenants and
agrees to take any and all steps necessary to ensure that LIBC issues an option
to Employee on the Closing Date pursuant to which Employee shall have the right
to purchase up to 30,000 shares of common stock of LIBC (the "Option"). The
Option shall be granted pursuant to the terms and conditions of the Letchworth
Independent Bancshares Corporation Stock Option Plan of 1998, as amended to
include certain employees of the Bank (the "Option Plan"), and pursuant to the
terms and conditions of the Option Agreement used by LIBC in connection with the
grant of options under the Option Plan. The Option Agreement shall provide:
(i) that the option price for each share of common stock
shall be the "fair market value," as defined in the Option Plan, of a share of
common stock of LIBC on the Closing Date;
(ii) that Employee shall obtain the right to exercise
twenty percent (20%) of the Option on each anniversary date of the Closing Date
such that on the fifth anniversary date of the Closing Date, Employee would have
the right to exercise the entire Option;
(iii) that any unexercised portion of the Option shall be
carried forward to successive years until the expiration of the Option
Agreement;
(iv) that the Options shall immediately become fully
vested and exercisable upon the sale or merger of LIBC with and into another
entity pursuant to which LIBC is not the surviving entity, or upon the
termination of Employee without "cause," as defined below; and
(v) that any unexercised portion of the Option shall be
protected from dilution pursuant to the terms and conditions of the Option Plan.
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E. Employee shall also be eligible to earn a bonus based upon the
economic performance of the Bank. In connection therewith, prior to the start of
each fiscal year of the Bank, Employee and the Board of Directors of the Bank
shall, in good faith and taking into account all appropriate factors, determine
what would constitute "Threshold," "Plan," "Above Plan," and "Superior"
performance of the Bank during the upcoming fiscal year, the criteria to be used
in determining whether such performance has been achieved, and the bonus payment
to be due and owing Employee for achieving each performance level.
Notwithstanding the foregoing, the Bank and Employee hereby covenant and agree
that the bonus payments for achieving the various performance levels for the
fiscal years ending December 31, 1999 and December 31, 2000 shall be as set
forth on Exhibit B annexed hereto.
F. In addition to the foregoing, Employee shall be eligible to
participate in the Supplemental Executive Retirement Plan (the "SERP") of the
Bank, a copy of which is annexed hereto as Exhibit C.
4. Non-Competition. During the term of this Agreement or any extension
thereof, and for a period of two (2) years thereafter, Employee hereby agrees
that he will not, directly or indirectly, whether as owner, principal, agent,
consultant, employee, partner, stockholder or any other capacity, directly or
indirectly (a) engage in the business of banking for or with any bank which has
an office located within twenty (20) miles of a branch office of the Bank, or
(b) solicit employment for on or on behalf of any employee of the Bank, or
induce any such employee to leave the employ of the Bank. Notwithstanding the
foregoing, the parties hereto hereby acknowledge and agree that (i) the terms
and conditions of this Section 4 shall not apply in the event Employee is
terminated without "cause" by the Bank, (ii) the provisions of this Section 4
shall not be interpreted to prohibit Employee from holding investments as a
passive investor or passive stockholder in other financial institutions, and
(iii) the provisions of this Section 4 shall not be interpreted to prohibit
Employee from being employed by any financial institution that has total assets
in excess of Seven Billion Dollars.
5. Confidentiality of Information.
A. Employee shall not, either during the term of this Agreement
or thereafter, disclose or authorized anyone else to disclose, or use or make
known for his or another's benefit, any confidential, proprietary or other
similar information, knowledge or data of the Bank, LIBC, or BofC in any way
acquired during the performance of his duties hereunder. Confidential,
proprietary or other similar information, knowledge or data of the Bank, LIBC or
BofC shall, for the purposes of this Agreement, include but not be limited to,
matters not readily available to the public which are: (i) of a technical nature
such as but not limited to methods, know-how, computer programs, and similar
items; (ii) of a business nature such as but not limited to information about
lists of customers, prices, costs, profits, markets, or the Bank's and/or LIBC's
and/or BofC's strengths and weaknesses; or (iii) pertaining to future
developments such as but not limited to research and development, or future
marketing or service plans or ideas of the Bank and/or LIBC and/or BofC.
Notwithstanding the foregoing, information, knowledge or data which is in the
public domain, or readily available to the public, shall not constitute
confidential information of the Bank, LIBC or the BofC.
B. Employee agrees that upon termination of employment for any
reason whatsoever, he will deliver to the Bank all copies of data and
information, including without limitation, all documents, correspondence,
notebooks, reports, sales and other materials, customer lists or information,
and all other material and copies thereof relating in any way to the business of
the Bank and/or LIBC and/or B of C which are in his possession or control.
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6. Term and Termination.
A. Term. This Agreement shall be effective from the date first
above written and shall remain in effect for a period of three (3) years. In
addition, on each anniversary date hereof, this Agreement shall automatically
renew for an additional one (1) year period so that the term of this Agreement
shall always be three (3) years unless earlier terminated as provided in Section
6.B. below.
B. Termination.
(i) Employee may terminate this Agreement with or without
cause at any time upon one hundred twenty (120) days written notice to the Bank.
In addition, the Bank may terminate this Agreement without "cause" at any time
upon thirty (30) days written notice to Employee, or for "cause" at any time. If
terminated for "cause," said termination shall take effect immediately. For
purposes of this Agreement, "cause" for termination shall be limited to the
Employee's (a) gross dereliction of duties, or (b) conduct that offends the
standards of the community to such an extent that the good name and reputation
of the Bank and/or LIBC and/or BofC is significantly damaged within the
community, or (c) inability, due to disability, to perform substantially all of
the duties assigned to him pursuant to the terms and conditions of this
Agreement for one hundred eighty (180) days during any twelve (12) month period,
or (d) Employee's death.
(ii) In the event that the Bank terminates this Agreement
without "cause" and Employee executes and delivers a general release in favor of
the Bank and its affiliates (pursuant to which the Bank and its affiliates are
released of any and all liabilities and/or obligations to Employee other than
the severance pay obligations due and owing under this Section 6.B.), the Bank
shall pay Employee, as severance pay, his annual salary set forth in Section
3.A. for a term of eighteen (18) months from the effective date of such
termination, said payments to be made in eighteen (18) consecutive, equal,
monthly installments. In addition, in the event that the Bank terminates this
Agreement without "cause", the Bank shall (a) reimburse Employee for all
premiums incurred by Employee for COBRA benefits during the eighteen (18) month
period from and after the effective date of said termination, (b) pay Employee
any and all amounts due and owing under Section 3.B. above, as if Employee
remain employed with the Bank until the second anniversary of the Closing Date,
and (c) the Option granted to Employee pursuant to Section 3.D. above shall
immediately vest in accordance with the terms and conditions of the Option Plan.
(iii) In the event that the Bank terminates this Agreement
for "cause," (a) Employee shall have no right to, and the Bank shall have no
obligation to pay Employee, any severance pay whatsoever, (b) Employee shall
have no right to, and the Bank shall have obligations to pay Employee, any
remaining amounts due and payable under Section 3.B. above, and (c) any
unexercised portion of the Option shall terminate as of the effective date of
said termination; provided, however, that in the event that the Bank terminates
this Agreement pursuant to the terms of Section 6.B(i)(c) or Section 6.B.(i)(d)
above, then the Bank shall pay Employee any and all amounts due and owing under
Section 3.B. above as if Employee remain employed by the Bank until the second
anniversary of the Closing Date.
(iv) Notwithstanding the foregoing, in the event that a
"Significant Event," as defined below, occurs and as a result thereof, (a)
Employee's duties and responsibilities are substantially reduced, or (b)
Employee's employment is terminated by the Bank without "cause", then the Bank
shall, after its receipt of a general release in favor of the Bank and its
affiliates (pursuant to which the Bank and its affiliates are released of any
and all liabilities and/or obligations to Employee other than the severance pay
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obligations due and owing under this Section 6.B.), pay Employee, as severance
pay, all amounts that would be due and owing Employee pursuant to the terms and
conditions of Section 6.B.(ii) above if Employee had been terminated by the Bank
without "cause" (and without the occurrence of a "Significant Event") except
that (yy) in the event that said reduction in duties and responsibilities or
said termination without "cause" occurs during the "Transition Period," as
defined below, Employee shall receive his salary for a period of thirty-six (36)
months (rather than the eighteen (18) period referenced above), and (zz) in the
event that said reduction in duties and responsibilities or termination without
"cause" occurs after or before the Transition Period, Employee shall receive his
salary for the remaining portion of the then current three (3) year term of this
Agreement (rather than the eighteen (18) month period referenced above). For
purposes of this Agreement, the term "Significant Event" shall mean a change of
"control" of the Bank or of LIBC, or the sale of all or substantially all of the
assets of the Bank or LIBC, or the merger of the Bank or LIBC with and into
another institution pursuant to which the Bank or LIBC (as the case may be) is
not the surviving entity; provided, however, that the merger of the Bank with
and into a wholly owned subsidiary of LIBC shall not be deemed a "Significant
Event" for purposes of this Agreement, and the provisions of this Section
6.B(iv) shall not be invoked by reason of such a merger. The term "control"
shall mean the possession of the power to elect a majority of the members of the
Board of Directors of the Bank or LIBC (as the case may be) through the
ownership of voting securities in the Bank or LIBC (as the case may be);
provided, however, that the acquisition of all or a portion of the issued and
outstanding shares of capital stock of the Bank by LIBC, or by the current
shareholders of the Bank, shall not be deemed a change of "control" of the Bank
and the provisions of this Section 6.B(iv) shall not be invoked by reason of the
acquisition of such shares of capital stock by LIBC or the current shareholders
of the Bank, as the case may be. For purposes of this Agreement, the term
"Transition Period" shall mean the period from and after the Closing Date until
the earlier of (i) the date that LIBC acquires all of the issued and outstanding
shares of capital stock of the Bank, and (ii) the first anniversary date of the
date that LIBC sells all of the shares of capital stock of the Bank that it owns
to a third party.
7. Remedies. Any and all remedies conferred upon a party shall be deemed
cumulative with, and not exclusive of, any other remedy conferred hereby, or by
law or equity upon such party, and the exercise by any party of any one remedy
will not preclude the exercise of any other remedy. In addition, Employee hereby
acknowledges and agrees that monetary damages would be an inadequate remedy for
any breach or threatened breach of the terms and conditions of Section 4 or
Section 5 hereof and that, in the event of any such breach or threatened breach,
injunctive relief will be necessary to prevent irreparable injury to the Bank.
Accordingly, Employee hereby agrees that in addition to any other relief to
which the Bank may be entitled, any court having jurisdiction may enter an
appropriate injunctive order or other equitable relief to prevent such breach or
threatened breach. This injunctive remedy and/or equitable relief should not be
interpreted to limit the availability of injunctive or other equitable relief to
cases of breach or threatened breach of Section 4 or Section 5 or to limit
remedies for the breach or threatened breach of any other provisions, it being
specifically agreed that the Bank shall be entitled to all remedies available
under law or equity with respect to such breaches or threatened breaches.
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8. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by registered or
certified mail to the address of the respective parties first written above or
such other address as the parties may from time to time notify each other in
writing. All notices shall be deemed given on the date of delivery if personally
delivered or, if mailed, on the third day after mailing.
9. Assignment. Employee may not make any assignment of this Agreement or
any interest therein, by operation of law or otherwise, without the prior
written consent of the Bank. Subject to the foregoing, this Agreement shall
inure to the benefit of and shall be binding upon the successors and assigns of
the parties hereto.
10. Entire Agreement. This instrument contains the entire agreement of the
parties. This Agreement may not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
11. Severability. If any provision of this Agreement shall be deemed to be
unenforceable, the remaining provisions shall, to the extent possible, be
carried into effect taking into account the general purpose and spirit of this
Agreement.
12. Governing Law. This is a New York contract and shall be construed under
and be governed in all respects by the laws of the State of New York.
13. Surviving Sections. Notwithstanding any provision to the contrary set
forth herein, Sections 4, 5, 6.B., and 7 shall survive the termination or
expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the date first above written.
THE MAHOPAC NATIONAL BANK
Attest: (Under authority granted to the Executive
Compensation Committee by resolution of the Board
of Directors of the Bank, dated November 5, 1998)
- ----------------------------
Secretary
By:
-----------------------------------
Title: Director of the Bank and Member of the
Executive Compensation Committee
Stephen E. Garner
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EXHIBIT B
Incentive Compensation Criteria - 1999 and 2000
-----------------------------------------------
Although the performance criteria for determining the "Plan"
performance level for the fiscal years ending December 31, 1999 and December 31,
2000 shall be determined by Employee and the Board of Directors of the Bank in
good faith and taking into account all appropriate factors, Employee and the
Bank hereby agree that the "Threshold," "Above Plan," and "Superior" performance
levels shall be defined as follows for such fiscal years:
(a) "Threshold shall mean a performance level that is 90%
of "Plan";
(b) "Above Plan" shall mean a performance level that is
110% of "Plan"; and
(c) "Superior" shall mean a performance level that is
115% of "Plan."
In addition, Employee and the Bank hereby agree that the bonus payment to be
paid to Employee for achieving the various performance levels set forth above
for the fiscal years ending December 31, 1999 and December 31, 2000 shall be as
follows:
(i) in the event that the Bank obtains the "Threshold"
performance level, Employee shall receive a bonus payment in an amount equal to
ten percent (10%) of the annual salary paid to Employee during said fiscal year
in accordance with Section 3.A of the Agreement to which this Exhibit is
attached;
(ii) in the event that the Bank obtains the "Plan"
performance level, Employee shall receive a bonus payment in an amount equal to
twenty-five percent (25%) of the annual salary paid to Employee during said
fiscal year in accordance with Section 3.A of the Agreement to which this
Exhibit is attached. All amounts payable under this clause (ii) shall be in lieu
of any payments due and owing Employee under clause (i) above;
(iii) in the event that the Bank obtains the "Above Plan"
performance, Employee shall receive a bonus payment in an amount equal to
thirty-five percent (35%) of the annual salary paid to Employee during said
fiscal year in accordance with Section 3.A of the Agreement to which this
Exhibit is attached. All amounts payable under this clause (iii) shall be in
lieu of any payments due and owing Employee under clause (i) or (ii) above; and
(iv) in the event that the Bank obtains the "Superior"
performance, Employee shall receive a bonus payment in an amount equal to forty
percent (40%) of the annual salary paid to Employee during said fiscal year in
accordance with Section 3.A of the Agreement to which this Exhibit is attached.
All amounts payable under this clause (iv) shall be in lieu of any payments due
and owing Employee under clause (i), (ii) or (iii) above.
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