Exhibit 10.3
EMPLOYMENT AGREEMENT
This sets forth the terms of the Employment Agreement made effective as of
October 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) J. DAVID CLARK, an individual currently
residing at Campbell, New York ("Employee"). This Agreement is effective as of
October 1, 2004 and supersedes the Change of Control Agreement between the
parties dated November 30, 2001.
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 Credit Officer and Senior Vice President of Employer from Employer's
office in Corning, New York for a term commencing on October 1, 2004 and ending
on December 31, 2009 ("Period of Employment"), subject to termination as
provided in paragraph 3 hereof.
(b) Salary. During the period October 1, 2004 through December 31,
2004, Employer shall pay Employee base salary at the annual rate of $175,000.00
("Base Salary"). Employee's Base Salary for calendar years after 2004 shall be
determined by the Board of Directors of Employer ("Board"), or an authorized
committee of the Board, in accordance with Employer's regular practice for
reviewing and adjusting base salary for executive
employees. Employee's Base Salary is payable 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 term includes any successor plan or incentive
compensation arrangement) which has been approved by the Board 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 paragraph 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 the Board and Employer's President and
Chief Executive Officer or authorized designee, for the supervision of all
aspects of Employer's lending and credit operations, and the discharge of such
other duties and responsibilities to Employer as may from time to time be
reasonably assigned to Employee by the Board or Employer's President and Chief
Executive Officer. Employee shall report to the Chief Banking Officer of
Employer or to such other officer as designated by Employer's President and
Chief Executive Officer. Employee shall devote Employee's best efforts to the
affairs of Employer, serve faithfully and to the best of Employee's 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. Subject to
Employee's consent, which consent may not be unreasonably withheld, Employee
shall serve on the board of
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directors of, or as an officer of Employer's affiliates, without additional
compensation if requested to do so by the Board. Employee shall receive only the
compensation and other benefits described in this Agreement for Employee's
duties as a Director of Employer. Employee may reasonably withhold consent to
appointment, or may resign from any such position, if Employer fails to provide
and maintain in force continuously throughout the term of the Employee's service
in any such capacity, indemnity insurance coverage for directors' and officers'
liability with such coverage limits and carriers as are satisfactory to the
reasonable requirements of Employee.
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
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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 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 substantially all of Employee's duties hereunder
by reason of physical or mental illness or injury for a period of 26 successive
weeks, or such longer waiting/elimination period provided pursuant to Employer's
group long-term disability policy (the "Disability Period") shall constitute
disability. The determination of disability shall be made by a majority vote of
a physician selected by Employer, a physician selected by Employee and a third
physician selected by the other two physicians. 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). Thereafter, 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 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 (A) from any
transaction to which such company is a party or (B) 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;
(iii) Unreasonable neglect or refusal to perform the duties
assigned to Employee under or pursuant to this Agreement, unless cured within 60
days following Employee's receipt of written notice to Employee of such neglect
or refusal;
(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 and material failure to follow the reasonable,
written instructions of the Board, the Chief Banking Officer of Employer, or the
President and Chief Executive Officer of Employer or authorized designee,
provided that the instructions do not require Employee to engage in unlawful
conduct; or
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(vii) Any material and documented violation by Employee of the
rules or regulations of the Office of the Comptroller of the Currency or of any
other regulatory agency that Employee knew or should have known was a violation
of such rules or regulations.
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, 2009 for reasons other than cause,
Employee shall be entitled to a severance benefit equal to the greater of (i)
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 over the
12-month period following Employee's termination. In addition, Employer shall:
(iii) permit Employee to dispose of any restricted stock granted to Employee;
and (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.
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(f) Expiration of Term Without Renewal. In the event that Employee's
employment ends on December 31, 2009 solely because Employer chooses not to
renew or extend this Agreement beyond December 31, 2009 for reasons other than
cause, then Employee shall be entitled to a severance benefit equal to the sum
of (i) 175 percent of the annual Base Salary in effect at the time of
termination, and (ii) the most recent payment to Employee under the Management
Incentive Plan, such sum to be payable in equal biweekly installments over the
6-month period following Employee's termination of employment.
(g) Amounts payable to Employee pursuant to paragraphs 3(e) or 3(f)
shall be reduced by payments made to Employee pursuant to paragraphs 6(a)(i) and
(ii).
(h) Employer shall have the right of first refusal to purchase from
Employee, or from Employee's beneficiary or estate, shares of CBSI Stock (but
not outstanding options) 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 beneficiary or estate, elects to dispose or
transfer such acquired shares. Any purchase made pursuant to this subparagraph
shall be made at a price per share equal to the closing price per share of CBSI
Stock (on the principal public market on which CBSI Stock is traded; currently
the New York Stock Exchange) on the trading day that immediately precedes the
date of purchase. The right of first refusal described in this subparagraph
shall expire ten years from the date of Employee's termination of employment.
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-
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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.
(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 Chief Banking Officer 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 four 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, subject to the approval of the President and Chief Executive
Officer of
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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) Reimbursement of the purchase price of a cellular
telephone and all Employer-related business charges incurred in connection with
the use of such telephone; and
(v) The use of an Employer-owned or Employer-leased
automobile, the selection and replacement of which shall be subject to the
approval of Employer's President and Chief Executive Officer (or the President
and Chief Executive Officer's designee).
5. Stock Options. Employer shall cause the Compensation Committee of the
Board 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. 2004 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(e) 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
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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 (equal to Employer's cost for such benefits),
identical to those described in paragraph 4(a) for the period during which Base
Salary is payable to Employee 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;
(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
(iv) Permit Employee to dispose of any restricted stock
granted to Employee.
(b) Subject to Employer's right to make the single lump sum payment
described in paragraph 6(c) 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
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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(c),
Employee shall be responsible for all taxes that are payable by Employee as a
result of Employee's receipt of an "excess parachute payment."
(c) Notwithstanding the foregoing of this paragraph 6, the Board may
elect, in its sole discretion, to pay all benefits due Employee pursuant to this
paragraph 6 in a single lump sum payment following a Change of Control and
Employee's termination of employment with Employer. Subject to the limitation
described in paragraph 6(b), 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 marginal income and
employment tax liability created by the single lump sum payment (i.e., the
income and employment tax liability that exceeds the income and employment tax
liability that would have been incurred by Employee if payments were made in the
manner and during the periods otherwise described in this paragraph 6).
(d) 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
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directors of Employer before the Transaction shall cease to constitute a
majority of the Board or the board of directors of 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;
(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.
(e) 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.
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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 compensate Employer
for damages resulting from such disclosure or use and, accordingly, that
Employer shall be entitled to temporary preliminary injunctions and permanent
injunctions to enforce this 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
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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 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 date the final payment is made pursuant to the terms of this
Agreement; provided, however, that the non-competition period shall end on the
date Employee's employment ends in the event of Employee's termination for "good
reason" (as defined in paragraph 6(e)), or Employee's termination without cause
(as defined in paragraph 3(d)), within two years following a Change of Control
that occurs during the Period of Employment.
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(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 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 Employee's receipt of written
notice to Employee of 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.
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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.
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, including the Change of
Control Agreement between the parties that is scheduled to expire effective
December 31, 2005. This Agreement cannot be
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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 3(e), 6 and 8 hereof shall survive the termination of this Agreement.
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.
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The foregoing is established by the following signatures of the parties.
COMMUNITY BANK SYSTEM, INC.
By:
-----------------------------
Its:
-----------------------------
COMMUNITY BANK, N.A.
By:
-----------------------------
Its:
-----------------------------
---------------------------------
J. DAVID CLARK
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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) J. David Clark, dated as of October 1,
2004 ("Agreement"), I, J. David Clark, 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 _________________________,
________, New York.
My contingent beneficiary is __________________, my __________________. My
contingent beneficiary's address is ________________________________.
Dated: _____________
-----------------------------
J. David Clark
- --------------------------
Witness
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