Exhibit No. 10.1
EMPLOYMENT AGREEMENT
This
Employment Agreement (the “ Agreement ”) is
entered into to be effective as of the 5 th day of
February, 2007 (the “ Effective Date ”), by and
between Evans National Bank, a national banking corporation with
offices at 14-16 North Main Street, Angola, New York 14006 (the
“ Bank ”) and Gary A. Kajtoch (the “
Employee ”) to set forth the terms and conditions
under which the Bank shall employ the Employee.
For
good and valuable consideration, the receipt of which is
acknowledged by the parties, it is agreed as follows:
1. EMPLOYMENT . The Bank hereby
employs the Employee and the Employee hereby accepts such
employment, subject to the terms and conditions herein set forth.
The Employee shall hold the offices of Chief Financial Officer and
Senior Vice President of the Bank effective as of the Effective
Date reporting to the Chief Executive Officer and/or the Board of
Directors of the Bank (the “ Bank Board
”).
2. TERM . The initial term of
employment under this Agreement shall begin on the Effective Date
hereof and shall continue until December 31, 2011, subject to
prior termination in accordance with the terms of this Agreement
(the “ Initial Term ”). Subject to the rights of
the parties hereunder to terminate employment hereunder, the
Initial Term may be extended annually by appropriate action of the
Bank Board for successive additional periods of one (1) year
commencing on December 31, 2007 and each anniversary thereof
(each such period, an “ Additional Term ” and
together with the Initial Term collectively, the “
Term ”).
3. DUTIES .
(a) The Employee shall perform such
services, duties and functions as the Bank Board may lawfully
assign to him and as are typically performed by executives in such
senior executive position, and the Employee shall perform such
services, duties and/or functions consistent with the office or
offices in which he is serving and its responsibilities as may from
time to time be prescribed by the Bank Board, and shall comply in
the performance of his services, duties and functions with the
policies of the Bank and the Bank Board, and be subject to the
direction of the Bank Board.
(b) The Employee shall devote all of his
business time and attention, reasonable vaction time and absences
for sickness excepted, to the business and affairs of the
Bank.
(c) The Employee shall be subject to the
Bank’s rules, practices and policies applicable to the
Bank’s executive officers.
(d) The Employee shall be appointed to
serve as chairman of the Bank’s ALCO Committee, and he shall
serve in such position at the discretion of the Bank
Board.
(e) The Employee shall participate in the
Bank’s Investment Committee and Senior Management Operating
Committee.
4. COMPENSATION . As compensation
for the employment services to be rendered by the Employee
hereunder, the Bank agrees to pay, and the Employee agrees to
accept, payable in equal installments in accordance with the
Bank’s practice, an initial annual base salary of $150,000.
The Employee’s annual salary hereunder for the remaining
years of employment shall be determined by the Bank Board in its
sole discretion, provided, however, that the Employee’s
annual base salary shall not be reduced below $150,000. The
Employee’s performance appraisal and salary review shall
occur annually on a calendar year basis with the first review to be
held as of January 1, 2008. Beginning with the calendar year
2007, the Employee shall be eligible for an annual bonus as may be
deemed appropriate by the Bank Board in its sole
discretion.
5. BENEFITS .
(a) Employee shall be entitled to
4 weeks of paid vacation per year (in accordance with the
Bank’s vacation policy as in effect from time to time), and
to participate in such benefit plans and arrangements and receive
any other benefits customarily provided by the Bank to its senior
management personnel (including any profit sharing, pension, short-
and long-term disability insurance, hospital, major medical
insurance and group life insurance plans in accordance with the
terms of such plans) and for which the Employee shall qualify, and
as such plans, programs, and arrangements are from time to time
amended or modified by the Bank (the “ Benefit Plans
”). Nothing in this Agreement shall be construed to require
the Bank to establish any specific plan(s) or to prevent the Bank
from amending, modifying or terminating any Benefit
Plan.
(b) The Bank shall reimburse the Employee,
upon presentment of suitable vouchers, for his reasonable business
expenses, including travel expenses, incurred or paid by the
Employee in connection with his employment hereunder in accordance
with Bank policy as established from time to time by the Bank
Board. The Bank shall also pay or reimburse the Employee for fees
and expenses associated with membership in trade associations and
professional memberships related to the business of the Bank and
the Employee’s employment.
6. TERMINATION OF EMPLOYMENT; EFFECT OF
TERMINATION .
(a) The Employee’s employment
hereunder shall terminate upon the first to occur of the
following:
(i) upon 90 days’ prior written
notice to the Employee upon determination by the Bank Board that
the Employee’s employment shall be terminated for any reason
which would not constitute termination “ for cause
” (as herein defined);
(ii) upon written notice to the Employee
upon determination by the Bank Board that the Employee’s
employment shall be terminated “for cause”;
|
|
(iii)
|
|
automatically
upon the death of the Employee;
|
(iv) in accordance with the terms of
Section 7 upon the “disability” (as hereinafter
defined) of the Employee; and
(v) upon 90 days’ prior written
notice by the Employee to the Bank Board of the Employee’s
voluntary termination of his employment.
(b) For the purposes of this Agreement
“ for cause ” shall mean
(i) Employee’s dishonesty, willful misconduct, gross
negligence, or fraud in the Employee’s dealings with the Bank
or any of its affiliates or with any of the Bank’s or its
affiliates’ customers or otherwise, (ii) conduct of Employee
which is unbecoming a banker, (iii) indictment of Employee for
any crime which in the reasonable judgment of the Bank Board
adversely affects the good name and reputation of the Bank or any
of its affiliates, or (iv) material neglect or failure by the
Employee to fulfill the Employee’s obligations as Chief
Financial Officer and/or Senior Vice President of the Bank as
contemplated by this Agreement where such neglect or failure shall
not have ceased or been remedied within two weeks following written
warning from the Bank Board.
(c) In the event the Employee’s
employment is terminated without cause pursuant to Section 6(a)(i)
above, the Bank shall pay the Employee, for a period equal to the
then remaining Term of this Agreement, a monthly payment (subject
to applicable tax withholding) equal to one-twelfth of his then
annual base salary, which amount shall be in lieu of any and all
other payments due and owing to the Employee under the terms of
this Agreement (other than any payments or benefits payable under
the terms of the Benefit Plans).The Bank’s obligation to make
payments under this Section 6(c) shall be conditional upon the
Employee’s compliance with his obligations under
Sections 11, 12, 13 and 14 hereof.
(d) If the Employee should die during the
term of his employment hereunder, this Agreement shall terminate
immediately. In such event, the estate of the Employee shall
thereupon be entitled to receive such portion of the
Employee’s then annual base salary as has been accrued
through the date of his death. The Employee’s estate also
shall be entitled to any amounts or benefits payable under the
terms of the Benefit Plans.
(e) Upon termination of the
Employee’s employment by the Bank for cause or by the
Employee pursuant to Section 6(a)(v), the Employee shall not
be entitled to any amounts or benefits hereunder other than such
portion of the Employee’s annual salary as has been accrued
through the date of his termination of employment and any accrued
and unpaid vacation pay through the date of his termination of
employment (as provided in the Bank’s vacation policy as in
effect from time to time and consistent with applicable
law).
7. DISABILITY . The
Employee’s employment may also be terminated upon written
notice to the Employee by the Bank in the event of the
Employee’s disability. For purposes of this Agreement “
disability ” shall mean the Employee’s physical
or mental incapacity which prevents the Employee from performing
the Employee’s normal duties on a full time basis, which
condition, in the reasonable judgment of the Bank Board after
consultation with medical advisors satisfactory to such Board and
the Employee, is likely to continue for a sufficiently long period
of time so as to be materially detrimental to the Bank’s
operations. Any termination pursuant to this Section 7 shall
be effective on the date 30 days after which the Employee
shall have received written notice of the Bank’s election to
terminate hereunder. In such event, the Employee shall thereupon be
entitled to receive, for a period equal to the shorter of
(i) 180 days from the effective date of the
Employee’s termination of employment under this
Section 7 or (ii) until such date the Employee becomes
eligible for long term disability payments under the Bank’s
then existing long term disability plan, continued scheduled
monthly payments of the Employee’s then annual base salary.
Employee shall also be entitled to any amounts or benefits payable
under the terms of the Benefit Plans.
8. ASSIGNMENT . This Agreement is
personal to the Employee and the Employee may not assign or
transfer any part of his rights or duties hereunder, or any
compensation due to the Employee hereunder, to any other person,
except that this Agreement shall inure to the benefit of and be
enforceable by the Employee’s personal or legal
representatives, executors, administrators, heirs, distributees,
devises, legatees or beneficiaries. No payment pursuant to any will
or the laws of descent and distribution shall be made hereunder
unless the Bank shall have been furnished with a copy of such will
and/or such other evide
