Exhibit 10.7
SUPPLEMENTAL RETIREMENT PLAN AGREEMENT
This sets forth the Supplemental Retirement Plan Agreement made effective
as of February 1, 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) JAMES A. WEARS, an individual currently
residing at 322 Hamilton Street, Ogdensburg, New York ("Employee"). This
Agreement supersedes the Supplemental Retirement Plan Agreement between the
parties dated as of January 1, 2001.
RECITALS
A. Employer maintains the Community Bank System, Inc. Pension
Plan, as may be amended from time to time ("Pension Plan").
B. Employee is a participant in the Pension Plan.
C. Internal Revenue Code Section 401(a)(17) ("Section
401(a)(17)") limits the amount of a participant's compensation
that may be taken into account under the Pension Plan for
purposes of calculating the participant's Pension Plan
benefit.
D. Employee has received, and may in the future receive,
compensation from Employer that exceeds the limit in effect
from time to time under Section 401(a)(17).
E. Employer wishes to provide Employee with a supplemental
retirement benefit that is based upon the portion of
Employee's compensation that cannot be taken into account
under the Pension Plan due to the limitation imposed on the
Pension Plan by Section 401(a)(17).
TERMS
IN CONSIDERATION of the premises and mutual agreements and covenants
contained herein, and other good and valuable consideration, the parties agree
as follows:
1. Supplemental Retirement Benefit.
(a) Employer shall pay Employee an annual supplemental retirement
benefit equal to the excess (if any) of (i) the annual benefit that Employee
would have earned pursuant to the Pension Plan if 100 percent of Employee's
annual compensation that is disregarded for Pension Plan purposes solely because
of the limit imposed by Section 401(a)(17) is added to the amount of Employee's
annual compensation actually taken into account pursuant to the Pension Plan and
if Internal Revenue Code Section 415 is disregarded, minus (ii) the annual
benefit actually payable to Employee pursuant to the Pension Plan. For purposes
of calculating the annual benefit described in clause (i) of this paragraph
1(a), the provisions of the Pension Plan that describe a minimum normal
retirement benefit for Employee shall be disregarded. Any such
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minimum annual benefit actually payable pursuant to the Pension Plan, however,
shall be taken into account for purposes of clause (ii) of this paragraph 1(a).
(b) For the purposes of paragraph 1, Employee's actual Pension Plan
benefit will be Employee's accrued benefit under the Pension Plan, expressed in
the form of a single life annuity for Employee's life beginning at age 65 and
determined as of the date Employee begins to receive the supplemental retirement
plan benefit (but without regard to whether payments of the Pension Plan benefit
have commenced).
(c) The supplemental retirement benefit described in paragraph 1
shall be payable in monthly installments commencing on the first day of the
month following the later of (i) Employee's receipt of all payment due under the
terms of his employment agreement with Employer, or (ii) Employee's termination
of employment with Employer.
(d) The supplemental retirement benefit described in this paragraph
1 shall be paid in the form of an actuarially reduced joint and 50 percent
survivor benefit with Employee's spouse as survivor annuitant; provided,
however, that:
(i) If Employee simultaneously commences receipt of Employee's
Pension Plan benefit, then the benefit under this paragraph 1 shall be paid in
the same form as Employee's Pension Plan benefit;
(ii) If Employee shall receive payment of Employee's benefit
under the Pension Plan in a form other than a single life annuity for Employee's
life, then the supplement retirement benefit under this paragraph 1 shall be
converted to the same form of payment, using the factors applied to determine
actuarial equivalents under the Pension Plan at the time payments begin; and
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(iii) If Employee or his beneficiaries shall receive payment
of Employee's benefit under the Pension Plan prior to Employee's attainment of
age 62, then the supplement retirement benefit under this paragraph 1 shall be
subject to the same early retirement reduction, using the factors applied to
determine early retirement benefits under the Pension Plan at the time payments
begin.
Notwithstanding the foregoing, if Employee dies prior to commencing
receipt of payments under this paragraph 1, Employee's surviving spouse shall
receive an actuarially reduced 50 percent survivor benefit determined as if
Employee retired on the day prior to his death and immediately commenced receipt
of payments under both this paragraph 1 and the Pension Plan in the form of an
actuarially reduced joint and 50 percent survivor benefit with his spouse as
survivor annuitant. If Employee has no spouse at the time of Employee's death,
no survivor benefits shall be paid pursuant to this paragraph 1.
(e) Employer shall establish a "grantor trust" (as that term is
defined in Internal Revenue Code Section 671) to aid it in the accumulation and
payment of the supplemental retirement benefit described in this paragraph 1;
provided that the trust shall be established with the intention that the
creation and funding of the trust shall not result in the recognition of gross
income by Employee of any amount credited under the trust prior to the date the
amount is paid or made available. Assets of the trust, and any other assets set
aside by Employer to satisfy its obligations under this Agreement, shall remain
at all times subject to the claims of Employer's general creditors. Employee and
his beneficiaries shall not have any rights under this paragraph 1 that are
senior to the claims of general unsecured creditors of Employer. Notwithstanding
any other term or provision of this Agreement or the trust, within ten business
days following Employee's termination of employment with Employer due to
Employee's
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retirement, disability or death, or, if earlier, immediately prior to the
effective date of a "Change of Control" (as defined in the employment agreement
between Employee and Employer), Employer shall fully fund the trust (using the
same actuarial assumptions used to establish funding in the Pension Plan) for
all benefits earned pursuant to this Agreement through the date of Employee's
termination of employment or the effective date of the Change of Control, as
applicable.
(f) The right to receive the supplemental retirement benefit
described in this paragraph 1 shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge or encumbrance, nor
subject to attachment, garnishment, levy, execution or other legal or equitable
process for the debts, contracts or liabilities of Employee or his
beneficiaries.
2. Change of Control
(a) Subject to paragraph 2(b) below, if any portion of the amounts
paid to, or value received by, Employee following a Change of Control
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 Agreement, then payments shall be made without
restructuring. Employee shall be responsible for all taxes and penalties payable
by Employee as a result of Employee's receipt of an "excess parachute payment."
(b) Notwithstanding the foregoing of this paragraph 2, if the Board
of Directors of Employer elects to make a single lump sum payment to Employee
pursuant to
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paragraph 6(a)(v) of the employment agreement between Employee and Employer,
Employer shall pay all benefits due Employee pursuant to this Agreement in an
actuarial equivalent 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 any tax liability attributable to such single lump sum payment.
3. 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, this instrument shall be
construed as if such invalid provisions had not been inserted.
4. Governing Law. This Agreement was executed and delivered in the State
of New York and shall be construed and governed in accordance with the laws of
the State of New York.
5. 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.
6. 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, including the January
1, 2001 Supplemental Retirement Plan Agreement between the parties. This
Agreement cannot be amended, modified, or supplemented in any respect, except by
a subsequent written agreement entered into by the parties.
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7. 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.
8. 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 a party in a proceeding to collect
payments due pursuant to this Agreement and prevails in collecting payments due
in the proceeding or settlement of the proceeding, 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:___________________________
_______________________________
JAMES A. WEARS
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