Exhibit 10.4
EMPLOYMENT AGREEMENT
This sets forth the terms of the Employment Agreement made effective
as of March 8, 2004 between (i) COMMUNITY BANK SYSTEM, INC., a Delaware
corporation and registered bank holding company, and COMMUNITY BANK, N.A., a
national banking association, both having offices located in Dewitt, New York
(collectively, the "Employer"), and (ii) MARK E. TRYNISKI, an individual
currently residing at 1964 Penfold Way, Baldwinsville, New York ("Employee").
This Agreement is effective as of March 8, 2004 and supersedes the Employment
Agreement between the parties dated as of June 1, 2003.
W I T N E S S E T H
IN CONSIDERATION of the promises and mutual agreements and covenants
contained herein, and other good and valuable consideration, the parties agree
as follows:
1. Employment.
(a) Term. Employer shall employ Employee, and Employee shall
serve, as Chief Operating Officer and Executive Vice President of Community Bank
System, Inc. and Community Bank, N.A. for a term commencing on March 8, 2004 and
ending on December 31, 2007 ("Period of Employment"), subject to termination as
provided in paragraph 3 hereof. In addition, until Employer appoints a successor
to Employee as Employer's Chief Financial Officer, Employee shall continue to
serve as Employer's Chief Financial Officer.
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(b) Salary. Through December 31, 2004, Employer shall pay
Employee base salary at the annual rate of $250,000.00 ("Base Salary").
Employee's Base Salary for calendar years after 2004 shall be reviewed and
adjusted in accordance with Employer's regular payroll practices for executive
employees.
(c) Incentive Compensation. Employee shall be entitled to
annual incentive compensation opportunities pursuant to the terms of the
Management Incentive Plan which has been approved by the Board of Directors of
Employer to cover Employee and other key personnel of Employer. Upon termination
of Employee's employment pursuant to subparagraph 3(a), 3(b), 3(c) or 6,
Employee shall be entitled to a pro rata portion (based on Employee's complete
months of active employment in the applicable year) of the annual incentive
award that is payable with respect to the year during which the termination
occurs or, in the case of a termination upon Employee's disability pursuant to
subparagraph 3(c), the date the Disability Period began.
2. Duties during the Period of Employment. Employee shall have full
responsibility, subject to the control of Employer's Board of Directors or the
authorized designee of the Board of Directors, for the supervision of all
assigned aspects of Employer's business and operations, including all banking,
operations, financial services, technology, treasury management and human
resources activities, and the discharge of such other duties and
responsibilities to Employer as may from time to time be reasonably assigned to
Employee by Employer's Board of Directors or the authorized designee of the
Board of Directors. Employee shall report to the President and Chief Executive
Officer of Employer. Employee shall devote Employee's best efforts to the
affairs of Employer, serve faithfully and to the best of Employee's
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ability and devote all of Employee's working time and attention, knowledge,
experience, energy and skill to the business of Employer, except that Employee
may affiliate with professional associations, business and civic organizations.
Employee shall serve on the Board of Directors of, or as an officer of
Employer's affiliates, without additional compensation if requested to do so by
the Board of Directors of Employer. Employee shall receive only the compensation
and other benefits described in this Agreement for Employee's duties as a
Director of Employer.
3. Termination. Employee's employment by Employer shall be subject
to termination as follows:
(a) Expiration of the Term. This Agreement shall terminate
automatically at the expiration of the Period of Employment unless the parties
enter into a written agreement extending Employee's employment, except for the
continuing obligations of the parties as specified hereunder.
(b) Termination Upon Death. This Agreement shall terminate
upon Employee's death. In the event this Agreement is terminated as a result of
Employee's death, Employer shall continue payments of Employee's Base Salary for
a period of 90 days following Employee's death to the beneficiary designated by
Employee on the "Beneficiary Designation Form" attached to this Agreement as
Appendix A. Employee's beneficiary shall be free to dispose of any restricted
stock previously granted to Employee by Employer. Additionally, Employer shall
treat as immediately exercisable all unexpired stock options issued by Employer
and held by Employee that are not exercisable or that have not been exercised,
so as to permit the Beneficiary to purchase the balance of Community Bank
System, Inc. ("CBSI") Stock not yet purchased pursuant to said options until the
end of the full exercise period provided in the
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original grant of the option right, determined without regard to Employee's
death or termination of employment.
(c) Termination Upon Disability. Employer may terminate this
Agreement upon Employee's disability. For the purpose of this Agreement,
Employee's inability to perform Employee's duties hereunder by reason of
physical or mental illness or injury for a period of 26 successive weeks (the
"Disability Period") shall constitute disability. The determination of
disability shall be made by a physician selected by Employer and a physician
selected by Employee; provided, however, that if the two physicians so selected
shall disagree, the determination of disability shall be submitted to
arbitration in accordance with the rules of the American Arbitration Association
and the decision of the arbitrator shall be binding and conclusive on Employee
and Employer. During the Disability Period, Employee shall be entitled to 100%
of Employee's Base Salary otherwise payable during that period, reduced by any
other benefits to which Employee may be entitled for the Disability Period on
account of such disability (including, but not limited to, benefits provided
under any disability insurance policy or program, worker's compensation law, or
any other benefit program or arrangement). Upon termination pursuant to this
disability provision, Employee shall be free to dispose of any restricted stock
granted to Employee. Additionally, Employer shall treat as immediately
exercisable all unexpired stock options issued by Employer and held by Employee
that are not exercisable or that have not been exercised, so as to permit the
Employee to purchase the balance of CBSI Stock not yet purchased pursuant to
said options until the end of the full exercise period provided in the original
grant of the option right, determined without regard to Employee's disability or
termination of employment.
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(d) Termination for Cause. Employer may terminate Employee's
employment immediately for "cause" by written notice to Employee. For purposes
of this Agreement, a termination shall be for "cause" if the termination results
from any of the following events:
(i) Material breach of this Agreement;
(ii) Documented misconduct as an executive or director
of Employer, or any subsidiary or affiliate of Employer for which Employee is
performing services hereunder including, but not limited to, misappropriating
any funds or property of any such company, or attempting to obtain any personal
profit (x) from any transaction to which such company is a party or (y) from any
transaction with any third party in which Employee has an interest which is
adverse to the interest of any such company, unless, in either case, Employee
shall have first obtained the written consent of the Board of Directors of
Employer;
(iii) Unreasonable neglect or refusal to perform the
duties assigned to Employee under or pursuant to this Agreement, unless cured
within 60 days;
(iv) Conviction of a crime involving moral turpitude;
(v) Adjudication as a bankrupt, which adjudication has
not been contested in good faith, unless bankruptcy is caused directly by
Employer's unexcused failure to perform its obligations under this Agreement;
(vi) Documented failure to follow the reasonable,
written instructions of the Board of Directors of Employer, provided that the
instructions do not require Employee to engage in unlawful conduct; or
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(vii) Any documented violation of the rules or
regulations of the Office of the Comptroller of the Currency or of any other
regulatory agency.
Notwithstanding any other term or provision of this Agreement
to the contrary, if Employee's employment is terminated for cause, Employee
shall forfeit all rights to payments and benefits otherwise provided pursuant to
this Agreement; provided, however, that Base Salary shall be paid through the
date of termination.
(e) Termination For Reasons Other Than Cause. In the event
Employer terminates Employee prior to December 31, 2007 for reasons other than
cause, Employee shall be entitled to a severance benefit equal to the greater of
(i) 200 percent of the sum of the annual Base Salary in effect at the time of
termination and the most recent payment to Employee under the Management
Incentive Plan, payable in equal biweekly installments over the 12-month period
following Employee's termination, or (ii) amounts of Base Salary and expected
Management Incentive Plan payments that otherwise would have been payable
through the balance of the unexpired term of this Agreement, payable in biweekly
installments through the balance of the unexpired term of this Agreement. In
addition, Employer shall: (iii) permit Employee to dispose of any restricted
stock granted to Employee; (iv) treat as immediately exercisable all unexpired
stock options held by Employee that are not exercisable or that have not been
exercised, so as to permit Employee to purchase the balance of CBSI Stock not
yet purchased pursuant to said options until the end of the full exercise period
provided in the original grant of the option right determined without regard to
Employee's termination of employment; (v) fully fund the grantor trust created
pursuant to paragraph 1(i) of the separate "Supplemental Retirement Plan
Agreement" between Employee and Employer, as amended, for
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benefits payable pursuant to that separate agreement; and (vi) cover Employee
and his eligible dependents under all Employer benefit plans and programs
available to Employer's retired employees.
If Employer's Board of Directors shall determine, in its sole
discretion, to appoint someone other than Employee to succeed Sanford A. Belden
as Employer's President and Chief Executive Officer, and if Employee shall
remain employed until the effective date of the successor's appointment, then
(x) Employee's employment with Employer shall terminate automatically upon the
effective date of the successor's appointment without any further action by
either Employee or Employer, unless a new employment agreement is reached
between Employee and Employer, and (y) Employee's termination under such
circumstances shall be treated as a termination for reasons other than cause as
described in this paragraph 3(e) (resulting in Employee's entitlement to the
benefits described in the first paragraph of this paragraph 3(e)).
Notwithstanding the foregoing, if Employee's employment ends
prior to December 31, 2007 for reasons other than cause and under circumstances
that entitle Employee to payments and benefits under paragraph 6 of this
Agreement (regarding "Change of Control"), then amounts payable under clauses
(i) or (ii) of this paragraph 3(e) shall be reduced by payments made to Employee
under paragraphs 6(a)(i) and (ii).
(f) Expiration of Term Without Renewal. In the event that
Employee's employment ends on December 31, 2007 solely because Employer chooses
not to renew or extend this Agreement beyond December 31, 2007 for reasons other
than cause, then Employee shall be entitled to a severance benefit equal to the
sum of (i) 200 percent of the annual Base Salary in effect at the time of
termination, and (ii) the most recent payment to
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Employee under the Management Incentive Plan, such sum to be payable in equal
biweekly installments over the six-month period following Employee's termination
of employment. Amounts payable under this paragraph 3(f) shall be reduced by any
payments made to Employee under paragraphs 6(a)(i) and (ii).
(g) Employer shall have the right of first refusal to purchase
from Employee or Employee's estate, shares of CBSI stock acquired pursuant to
the exercise of stock options after the date of Employee's termination of
employment for any reason, in the event Employee or Employee's estate elects to
dispose or transfer such acquired shares. Such right of first refusal shall
expire ten years from the date of termination.
4. Fringe Benefits.
(a) Benefit Plans. During the Period of Employment, Employee
shall be eligible to participate in any employee pension benefit plans (as that
term is defined under Section 3(2) of the Employee Retirement Income Security
Act of 1974, as amended), Employer-paid group life insurance plans, medical
plans, dental plans, long-term disability plans, business travel insurance
programs and other fringe benefit programs maintained by Employer for the
benefit of its executive employees. Participation in any of Employer's benefit
plans and programs shall be based on, and subject to satisfaction of, the
eligibility requirements and other conditions of such plans and programs.
Employer may require Employee to submit to an annual physical, to be performed
by a physician of his own choosing. Employee shall be reimbursed for related
expenses not covered by Employer's health insurance plan, or any other plan in
which Employee is enrolled. Employee shall not be eligible to participate in
Employer's Severance Pay Plan maintained for other employees not covered by
employment agreements.
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(b) Expenses. Upon submission to Employer of vouchers or other
required documentation, Employee shall be reimbursed for Employee's actual
out-of-pocket travel and other expenses reasonably incurred and paid by Employee
in connection with Employee's duties hereunder. Reimbursable expenses must be
submitted to the President and CEO of Employer for review on a quarterly basis.
(c) Other Benefits. During the Period of Employment, Employee
also shall be entitled to receive the following benefits:
(i) Paid vacation of 4 weeks during each calendar year
(with no carry over of unused vacation to a subsequent year) and any holidays
that may be provided to all employees of Employer in accordance with Employer's
holiday policy;
(ii) Reasonable sick leave;
(iii) Employer paid memberships for Employee at a golf
club and a social club in the Syracuse, New York area, subject to the approval
of the President and Chief Executive Officer of Employer and subject to
nondeductible tax treatment by Employer or a reimbursement to Employee for taxes
owed by Employee in connection with such benefit;
(iv) The use of an Employer-owned automobile of
Employee's choice, the purchase and replacement of which shall be subject to the
approval of the President and Chief Executive Officer of Employer; and
(v) Reimbursement of the purchase price of a car
telephone, a cellular telephone and all Employer-related business charges
incurred in connection with the use of such telephones.
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(d) Supplemental Retirement Benefits. The terms and conditions
for the payment of supplemental retirement benefits are set forth in a separate
written agreement between the parties.
5. Stock Options. Employer shall cause the Compensation Committee of
the Board of Directors of Employer to review whether Employee should be granted
options to purchase shares of common stock of CBSI. Such review may be conducted
pursuant to the terms of the Community Bank System, Inc. 1994 Long-Term
Incentive Compensation Program, a successor plan, or independently, as the
Compensation Committee shall determine. Reviews shall be conducted no less
frequently than annually.
6. Change of Control.
(a) If Employee's employment with Employer (as an employee)
shall cease for any reason, including Employee's voluntary termination for "good
reason" (as defined in paragraph 6(c) below), but not including Employee's
termination for "cause" (as described in paragraph 3(d)) or Employee's voluntary
termination without "good reason," within 2 years following a "Change of
Control" that occurs during the Period of Employment, Employer shall:
(i) Retain the services of Employee, on an independent
contractor basis, as a consultant to Employer for a period of no less than 36
months at an annual consulting fee rate equal to the total of Employee's Base
Salary in effect at the time of Employee's termination plus an amount equal to
the Management Incentive paid to the Employee in the year prior to the "Change
of Control";
(ii) Provide Employee with fringe benefits, or the cash
equivalent of such benefits, identical to those described in paragraph 4(a) for
the period during
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which Employee is retained as a consultant pursuant to (i) above. To the extent
the benefits provided to Employee in this paragraph 6(a)(ii) are deemed taxable
benefits, Employer shall reimburse Employee for taxes owed by Employee on the
benefits and tax reimbursement; and
(iii) Treat as immediately exercisable all unexpired
stock options issued by Employer and held by Employee that are not otherwise
exercisable or that have not been exercised (so as to permit Employee to
purchase the balance of CBSI Stock not yet purchased pursuant to said options
until the end of the full exercise period provided in the original grant of the
option right, determined without regard to Employee's termination of employment)
and permit Employee to dispose of any restricted stock granted to Employee.
(iv) Subject to Employer's right to make the single lump
sum payment described in paragraph 6(a)(v) below, if any portion of the amounts
paid to, or value received by, Employee following a "Change of Control" (whether
paid or received pursuant to this paragraph 6 or otherwise) constitutes an
"excess parachute payment" within the meaning of Internal Revenue Code Section
280G, then the parties shall negotiate a restructuring of payment dates and/or
methods (but not payment amounts) to minimize or eliminate the application of
Internal Revenue Code Section 280G. If an agreement to restructure payments
cannot be reached within 60 days of the date the first payment is due under this
paragraph 6, then payments shall be made without restructuring. Subject to
paragraph 6(a)(v), Employee shall be responsible for all taxes that are payable
by Employee as a result of Employee's receipt of an "excess parachute payment."
(v) Notwithstanding the foregoing of this paragraph
6(a), the Board of Directors of Employer may elect, in its sole discretion, to
pay all benefits due
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Employee pursuant to this paragraph 6 in a single lump sum payment within 90
days following a Change of Control and Employee's termination of employment with
Employer. In the event a single lump sum payment is made pursuant to the
foregoing sentence, the amount of the payment shall be increased to the extent
necessary to hold Employee harmless from all income and excise tax liability
attributable to such single lump sum payment.
(b) For purposes of this paragraph 6, a "Change of Control"
shall be deemed to have occurred if:
(i) any "person," including a "group" as determined in
accordance with the Section 13(d)(3) of the Securities Exchange Act of 1934
("Exchange Act"), is or becomes the beneficial owner, directly or indirectly, of
securities of Employer representing 30% or more of the combined voting power of
Employer's then outstanding securities;
(ii) as a result of, or in connection with, any tender
offer or exchange offer, merger or other business combination (a "Transaction"),
the persons who were directors of Employer before the Transaction shall cease to
constitute a majority of the Board of Directors of Employer or any successor to
Employer;
(iii) Employer is merged or consolidated with another
corporation and as a result of the merger or consolidation less than 70% of the
outstanding voting securities of the surviving or resulting corporation shall
then be owned in the aggregate by the former stockholders of Employer, other
than (A) affiliates within the meaning of the Exchange Act, or (B) any party to
the merger or consolidation;
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(iv) a tender offer or exchange offer is made and
consummated for the ownership of securities of Employer representing 30% or more
of the combined voting power of Employer's then outstanding voting securities;
or
(v) Employer transfers substantially all of its assets
to another corporation which is not controlled by Employer.
(c) For purposes of this paragraph 6, "good reason" shall mean
action taken by Employer that results in:
(i) An involuntary and material adverse change in
Employee's title, duties, responsibilities, or total remuneration;
(ii) An involuntary and material relocation of the
office from which Employee is expected to perform his duties; or
(iii) An involuntary and material adverse change in the
general working conditions (including travel requirements and clerical support)
applicable to Employee.
7. Withholding. Employer shall deduct and withhold from compensation
and benefits provided under this Agreement all necessary income and employment
taxes and any other similar sums required by law to be withheld.
8. Covenants.
(a) Confidentiality. Employee shall not, without the prior
written consent of Employer, disclose or use in any way, either during his
employment by Employer or thereafter, except as required in the course of his
employment by Employer, any confidential business or technical information or
trade secret acquired in the course of Employee's employment by Employer.
Employee acknowledges and agrees that it would be difficult to fully
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compensate Employer for damages resulting from the breach or threatened breach
of the foregoing provision and, accordingly, that Employer shall be entitled to
temporary preliminary injunctions and permanent injunctions to enforce such
provision. This provision with respect to injunctive relief shall not, however,
diminish Employer's right to claim and recover damages. Employee covenants to
use his best efforts to prevent the publication or disclosure of any trade
secret or any confidential information concerning the business or finances of
Employer or Employer's affiliates, or any of its or their dealings, transactions
or affairs which may come to Employee's knowledge in the pursuance of his duties
or employment.
(b) No Competition. Employee's employment is subject to the
condition that during the term of his employment hereunder and for the period
specified in paragraph 8(c) below, Employee shall not, directly or indirectly,
own, manage, operate, control or participate in the ownership, management,
operation or control of, or be connected as an officer, employee, partner,
director, individual proprietor, lender, consultant or otherwise with, or have
any financial interest in, or aid or assist anyone else in the conduct of, any
entity or business (a "Competitive Operation") which competes in the banking
industry or with any other business conducted by Employer or by any group,
affiliate, division or subsidiary of Employer, in the states of New York and
Pennsylvania. Employee shall keep Employer fully advised as to any activity,
interest, or investment Employee may have in any way related to the banking
industry. It is understood and agreed that, for the purposes of the foregoing
provisions of this paragraph, (i) no business shall be deemed to be a business
conducted by Employer or any group, division, affiliate or subsidiary of
Employer unless 5% or more of Employer's consolidated gross sales or operating
revenues is derived from, or 5% or more of Employer's consolidated assets are
devoted
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to, such business; (ii) no business conducted by any entity by which Employee is
employed or in which he is interested or with which he is connected or
associated shall be deemed competitive with any business conducted by Employer
or any group, division or subsidiary of Employer unless it is one from which 2%
or more of its consolidated gross sales or operating revenues is derived, or to
which 2% or more of its consolidated assets are devoted; and (iii) no business
which is conducted by Employer at the Date of Termination and which subsequently
is sold by Employer shall, after such sale, be deemed to be a Competitive
Operation within the meaning of this paragraph. Ownership of not more than 5% of
the voting stock of any publicly held corporation shall not constitute a
violation of this paragraph.
(c) Non-Competition Period. If Employee's employment with
Employer shall cease for any reason during the Period of Employment as defined
in paragraph 1(a) of this Agreement, the "non-competition period" shall begin on
the date the first payment is made pursuant to the terms of this Agreement and
shall end on the earlier of (i) the date that is 18 months after the date the
final payment is made pursuant to the terms of this Agreement, or (ii) December
31, 2007.
(d) Certain Affiliates of Employer. It is understood that
Employee may have access to technical knowledge, trade secrets and customer
lists of affiliates of Employer or companies which Employer's parent may acquire
in the future and may serve as a member of the board of directors or as an
officer or employee of an affiliate of Employer. Employee covenants that he
shall not, during the term of his employment by Employer or for the period
specified in 8(c) above, in any way, directly or indirectly, own, manage,
operate, control or participate in the ownership, management, operation or
control of, or be connected as an
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officer, employee, partner, director, individual proprietor, lender, consultant
or otherwise aid or assist anyone else in any business or operation which
competes with or engages in the business of such an affiliate.
(e) Termination of Payments. Upon the breach by Employee of
any covenant under this paragraph 8, Employer may offset and/or recover from
Employee immediately any and all amounts paid to Employee under this Agreement
in addition to any and all other remedies available to Employer under the law or
in equity.
9. Notices. Any notice which may be given hereunder shall be
sufficient if in writing and mailed by certified mail, return receipt requested,
to Employee at his residence and to Employer at 5790 Widewaters Parkway, Dewitt,
New York 13214, or at such other addresses as either Employee or Employer may,
by similar notice, designate.
10. Rules, Regulations and Policies. Employee shall abide by and
comply with all of the rules, regulations, and policies of Employer, including
without limitation Employer's policy of strict adherence to, and compliance
with, any and all requirements of the banking, securities, and antitrust laws
and regulations.
11. No Prior Restrictions. Employee affirms and represents that
Employee is under no obligations to any former employer or other third party
which is in any way inconsistent with, or which imposes any restriction upon,
the employment of Employee by Employer, or Employee's undertakings under this
Agreement.
12. Return of Employer's Property. After Employee has received
notice of termination or at the end of the term hereof, whichever first occurs,
Employee shall promptly return to Employer all documents and other property in
his possession belonging to Employer.
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13. Construction and Severability. The invalidity of any one or more
provisions of this Agreement or any part thereof, all of which are inserted
conditionally upon their being valid in law, shall not affect the validity of
any other provisions to this Agreement; and in the event that one or more
provisions contained herein shall be invalid, as determined by a court of
competent jurisdiction, the court shall have authority to modify such provision
in a manner that most closely reflects the intent of the parties and is valid.
14. Governing Law. This Agreement was executed and delivered in New
York and shall be construed and governed in accordance with the laws of the
State of New York.
15. Assignability and Successors. This Agreement may not be assigned
by Employee or Employer, except that this Agreement shall be binding upon and
shall inure to the benefit of the successor of Employer through merger or
corporate reorganization.
16. Miscellaneous. This Agreement constitutes the entire
understanding and agreement between the parties with respect to the subject
matter hereof and shall supersede all prior understandings and agreements. This
Agreement cannot be amended, modified, or supplemented in any respect, except by
a subsequent written agreement entered into by the parties hereto. The services
to be performed by Employee are special and unique; it is agreed that any breach
of this Agreement by Employee shall entitle Employer (or any successor or
assigns of Employer), in addition to any other legal remedies available to it,
to apply to any court of competent jurisdiction to enjoin such breach. The
provisions of paragraphs 6 and 8 hereof shall survive the termination of this
Agreement.
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17. Counterparts. This Agreement may be executed in counterparts
(each of which need not be executed by each of the parties), which together
shall constitute one and the same instrument.
18. Jurisdiction, Venue and Fees. The jurisdiction of any proceeding
between the parties arising out of, or with respect to, this Agreement shall be
in a court of competent jurisdiction in New York State, and venue shall be in
Onondaga County. Each party shall be subject to the personal jurisdiction of the
courts of New York State. If Employee is the prevailing party in a proceeding to
collect payments due pursuant to this Agreement, Employer shall reimburse
Employee for reasonable attorneys' fees incurred by Employee in connection with
such proceeding.
The foregoing is established by the following signatures of the
parties.
COMMUNITY BANK SYSTEM, INC.
By:____________________________
Its:___________________________
COMMUNITY BANK, N.A.
By:____________________________
Its:___________________________
_______________________________
MARK E. TRYNISKI
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APPENDIX A
BENEFICIARY DESIGNATION FORM
Pursuant to the Employment Agreement between (i) Community Bank
System, Inc. and Community Bank, N.A., and (ii) Mark E. Tryniski, dated as of
March 8, 2004 ("Agreement"), I, Mark E. Tryniski, hereby designate
_________________, my __________, as the beneficiary of amounts payable upon my
death in accordance with paragraph 3(b) of the Agreement. My beneficiary's
current address is _____________________________________.
Dated: _____________ _________________________________
Mark E. Tryniski
_____________________________
Witness
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