Exhibit 10.2
RETIREMENT AGREEMENT
THIS
RETIREMENT AGREEMENT (this “Agreement”) is made by and among JOSEPH F. SERBUN (“Employee”), COMMUNITY
BANK SYSTEM, INC., a Delaware corporation and registered bank holding company (“CBSI”), and COMMUNITY BANK, N.A., a
national banking association (“CBNA,” and together with CBSI, the “Company”), dated as of August
24, 2022 (the “Signing Date”).
WHEREAS,
the Company and Employee have mutually agreed that Employee will retire from employment with the Company effective as of the close of
business on September 30, 2022 (the “Effective Time”);
WHEREAS,
in connection with Employee’s retirement, the Company, in exchange for Employee’s promises and covenants in this Agreement
and subject to Employee’s execution, delivery, and non-revocation of this Agreement and the Confirmation (as defined below), desires
to provide Employee with certain rights and benefits as set forth in this Agreement; and
WHEREAS,
capitalized terms used but not defined herein shall have the meanings given to them in the Employment Agreement, by and between the Company
and Employee, dated and effective as of January 1, 2022 (as amended or supplemented from time to time, the “Employment Agreement”).
NOW
THEREFORE, in consideration of these premises and the mutual promises contained herein, and intending to be legally bound hereby, the
parties agree as follows:
1.
Retirement; Consideration.
1.1.
Employee shall retire from employment with the Company and its affiliates as of the Effective Time. Employee hereby resigns as
an officer of the Company and an officer and director of each of its subsidiaries and affiliates, and from any other positions he holds
with the Company and its subsidiaries and affiliates, effective as of the Effective Time. From the Signing Date through the Effective
Time, Employee will continue to be eligible to receive the Base Salary and to participate in the benefit plans described in Section 4
of the Employment Agreement. However, except as otherwise expressly provided in Section 1.2 of this Agreement, Employee shall not be eligible
to receive any incentive compensation under the Company’s Management Incentive Plan or any other applicable annual bonus or short-term
incentive plan, or to receive any further equity or equity-based awards (whether under the Company’s 2014 Long-Term Incentive Plan
or otherwise).
1.2.
Notwithstanding anything to the contrary in the Employment Agreement, and subject to (x) Employee’s timely execution and
delivery (that is, within twenty-one (21) days following the Signing Date) and non-revocation of this Agreement, (y) Employee’s
timely execution and delivery of the Confirmation and Release (“Confirmation”) attached hereto as Exhibit A,
as described in Section 1.5 of this Agreement, and (z) continued compliance with his promises and covenants hereunder, the Company shall
provide Employee with the following payments and benefits (collectively, the “Separation Benefits”):
| (i) | Severance in an aggregate amount equal to $945,540.00 (the “Severance
Amount”), payable as follows. Fifty percent (50%) of the Severance Amount shall be paid on the first day of the seventh month
that follows the Effective Time. The remainder of the Severance Amount shall be paid in equal biweekly installments over the six-month
period that begins on the first day of the seventh month that follows the Effective Time. |
| (ii) | Employee’s outstanding shares of CBSI restricted stock and unvested stock options (calculated as
of the Effective Time) are listed on Appendix 1 hereto. The number of shares of CBSI restricted stock, performance-based restricted
stock and unvested stock options set forth under the column “To Vest” on such Appendix 1 shall vest and remain outstanding
and be eligible to be exercised for the remaining period of their 10-year term. The number of shares of CBSI restricted stock, performance-based
restricted stock and unvested stock options set forth under the column “To Be Forfeited” shall be immediately forfeited for
no consideration. |
| (iii) | The Company shall transfer to Employee all rights, title, and ownership
in the Company-owned automobile that is currently assigned to Employee for his use. |
1.3.
Regardless of whether Employee executes or revokes this Agreement or the Confirmation, the Company will pay Employee all accrued
and unpaid (i) Base Salary, and (ii) reimbursable business expenses, subject to and in accordance with the Company’s applicable
policies and procedures (including, without limitation, submission of receipts), in each case of (i) and (ii) through the date of his
cessation of employment with the Company as soon as administratively feasible following the Effective Time. In addition, regardless of
whether Employee executes or revokes this Agreement or the Confirmation, nothing in this Agreement or the Confirmation shall be deemed
to waive Employee’s right to continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 or similar state
law (collectively, “COBRA”), and the Company shall provide Employee with all applicable COBRA notices in accordance
with its typical procedures for departing employees.
1.4.
Employee acknowledges that: (i) the payments, rights, and benefits set forth in Sections 1.2 and 1.3 constitute full settlement
of all his rights under the Employment Agreement upon his termination of employment, (ii) he has no entitlement under any other severance
or similar arrangement, plan or program maintained by the Company, and (iii) except as otherwise provided specifically in this Agreement,
the Company does not and will not have any other liability or obligation to Employee. Employee further acknowledges that, in the absence
of his execution (and non-revocation) of this Agreement and the Confirmation, the benefits and payments specified in Section 1.2 above
would not be provided to him.
1.5.
As an express condition to the receipt of the Separation Benefits, Employee must execute and deliver to the Company, either on
or within twenty-one (21) days following the Effective Time, the Confirmation, and must not revoke the Confirmation within the time period
specified therein. Employee expressly acknowledges and agrees that, if Employee fails to so timely execute and deliver the Confirmation,
or timely revokes the Confirmation in accordance with its terms, Employee shall forfeit all rights to the Separation Benefits.
2. Employee’s Release.
2.1.
Employee hereby fully and forever releases and discharges the Company, its parents and subsidiaries and each of their respective
predecessors, successors, assigns, stockholders, affiliates, officers, directors, trustees, employee benefit plans and their administrators
and fiduciaries, employees, agents and attorneys, past and present (the Company and each such person or entity is referred to as a “Released
Person”) from any and all claims, causes of action, damages, and liabilities, of whatever kind or nature, direct or indirect,
in law, equity, or otherwise (collectively, “Claims”), whether known or unknown, arising through the date of this Agreement
out of, or in any way related to, Employee’s employment by the Company or the termination thereof, including, but not limited to,
any claims for relief or causes of action under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., or any
other federal, state, or local statute, ordinance, or regulation regarding discrimination in employment, and any claims, demands, or actions
based upon alleged wrongful or retaliatory discharge or breach of contract under any state or federal law.
2.2.
Employee expressly represents that he has not filed a lawsuit or initiated any other administrative proceeding against a Released
Person and that he has not assigned any Claim against a Released Person. Employee further promises not to initiate a lawsuit or to bring
any other Claim against any Released Person arising out of or in any way related to Employee’s employment by the Company or the
termination of that employment. This Agreement will not prevent Employee from filing a charge with the Equal Employment Opportunity Commission
(or similar state agency) or participating in any investigation conducted by the Equal Employment Opportunity Commission (or similar state
agency); provided, however, that any Claims by Employee for personal relief in connection with such a charge or investigation
(such as reinstatement or monetary damages) would be barred.
2.3.
The foregoing will not be deemed to release the Company from (a) claims solely to enforce the terms of this Agreement (including
claims under Section 1.2), (b) claims for benefits (not including severance benefits) under the Company’s employee welfare benefit
plans and qualified and non-qualified employee pension benefit plans (for the avoidance of doubt, including, without limitation, the CBSI
Deferred Compensation Plan, the CBSI Pension Plan and the CBSI Restoration Plan), subject to the terms and conditions of those plans,
or (c) claims for defense and indemnification under the Company’s By-Laws or policies of insurance.
3.
Restrictive Covenants. Employee acknowledges that his covenants contained in Section 8 of the Employment Agreement will
survive the termination of his employment in accordance with their terms, and for this purpose, such termination of employment will be
treated as a resignation without “good reason” (as defined in the Employment Agreement). Employee affirms that those covenants
are reasonable and necessary to protect the legitimate interests of the Company, that he received adequate consideration in exchange
for agreeing to those restrictions, and that he will abide by those restrictions. Employee expressly and specifically acknowledges that
he will fully comply with Section 12 of the Employment Agreement, which requires Employee to promptly return to the Company as of the
Effective Time all documents and other property in his possession belonging to the Company.
4.
Non-Disparagement. Employee will not disparage any Released Person or otherwise take any action which could reasonably be
expected to adversely affect the personal or professional reputation of any Released Person. The Company shall instruct the members of
the CBSI Board of Directors and the Company’s executive officers to not disparage Employee or otherwise take any action which could
reasonably be expected to adversely affect the personal or professional reputation of Employee. Notwithstanding the foregoing, in no event
will any truthful, legally required disclosure or action be deemed to violate this Section, regardless of the content of such disclosure
or the nature of such action.
5.
Disclosures. Employee and the Company agree that nothing in this Agreement, the Confirmation or the Employment Agreement
prevents or prohibits Employee from (i) making any truthful disclosure of relevant and necessary information or documents in connection
with any charge, action, investigation, or proceeding relating to this Agreement, the Confirmation or the Employment Agreement, or as
required by law or legal process; (ii) participating, cooperating, or testifying in any charge, action, investigation, or proceeding
with, or providing information to, any self-regulatory organization, governmental agency, or legislative body, and/or pursuant to the
Sarbanes-Oxley Act, or (iii) filing, testifying, participating in or otherwise assisting in a proceeding relating to an alleged violation
of any federal, state, or municipal law relating to fraud, or any rule or regulation of the Securities and Exchange Commission or any
self-regulatory organization. To the extent permitted by law, upon receipt of any subpoena, court order, or other legal process compelling
the disclosure of any such information or documents, Employee agrees to give prompt written notice to the Company so as to permit the
Company to protect its interests in confidentiality to the fullest extent possible.
6.
Cooperation. Employee further agrees that he will cooperate fully with the Company and its counsel with respect to any litigation,
investigations, or governmental proceedings in which Employee was in any way involved during his employment with the Company and any transition
matters in which the Company believes that Employee’s cooperation would be helpful. Employee will render such cooperation in a timely
manner on reasonable notice from the Company. Employee and the Company acknowledge and agree that any services to be provided under this
Agreement, including during Employee’s continued employment through the Effective Time, may be provided outside of the physical
premises of the Company (i.e., on a remote basis) at the request of either Employee or the Company.
7.
Notice. Any notice or communication required or permitted under this Agreement or the Confirmation shall be made in writing
and sent by certified or registered mail, return receipt requested, addressed as follows:
If to Employee: to the
address in the Company’s personnel files.
| |
If to Company: |
Community Bank System, Inc. |
5790
Widewaters Parkway
Dewitt,
New York 13214
Attn:
General Counsel
or
to such other address as either party may from time to time duly specify by notice given to the other party in the manner specified above.
8.
Rescission Right. Employee expressly acknowledges and recites that (a) he has read and understands the terms of this Agreement
in their entirety, (b) he has entered into this Agreement knowingly and voluntarily, without any duress or coercion; (c) he has been
advised orally and is hereby advised in writing to consult with an attorney with respect to this Agreement (and the Confirmation) before
signing it; (d) he was provided twenty-one (21) calendar days after receipt of the Release to consider its terms before signing it;
and (e) he is provided seven (7) calendar days from the date of signing to terminate and revoke this Agreement, in which case this Agreement
shall be unenforceable, null, and void. Employee may revoke this Agreement during those seven (7) days by providing written notice of
revocation to the Company at the address specified in Section 7 herein. For the avoidance of doubt, if Employee fails to execute and deliver
this Agreement to the Company within twenty-one (21) days following the Signing Date, or timely revokes it in accordance with this Section
8, the Company’s obligation to provide the Separation Benefits shall immediately terminate.
9.
Challenge. If Employee violates or challenges the enforceability of this Agreement or the Confirmation (other than for purposes
of bringing a claim not released as provided in Section 2.3), no further Separation Benefits will be due to Employee.
10.1.
No Admission of Liability. This Agreement is not to be construed as an admission of any violation of any federal, state,
or local statute, ordinance, or regulation or of any duty owed by the Company to Employee. There have been no such violations, and the
Company specifically denies any such violations.
10.2.
Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective
and valid under applicable law. However, if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability will not affect any other provision, and this Agreement will be reformed, construed,
and enforced as though the invalid, illegal, or unenforceable provision had never been herein contained.
10.3.
Entire Agreement; Amendments. Except as otherwise provided herein, this Agreement contains the entire agreement and
understanding of the parties hereto relating to the subject matter hereof, and merges and supersedes all prior and contemporaneous discussions,
agreements, and understandings of every nature relating to the subject matter hereof. This Agreement may not be changed or modified, except
by an agreement in writing signed by each of the parties hereto. In the event of any conflict or inconsistency between this Agreement
and the Employment Agreement, this Agreement will take precedence and the Employment Agreement is hereby amended as necessary to resolve
such conflict or inconsistency.
10.4.
Withholding. The Company shall be entitled to deduct and withhold from all payments and benefits under this Agreement (including,
without limitation, the Separation Benefits) all applicable federal, state, local, and non-U.S. taxes, and all other appropriate or required
deductions.
10.5.
Section 409A. Section 14 of the Employment Agreement is incorporated by reference, mutatis mutandis, as though fully
set forth herein.
10.6.
Employee’s Estate. In the event of Employee’s death, all payments hereunder shall be paid in accordance with
this Agreement to Employee’s estate.
10.7.
Governing Law; Jurisdiction and Venue. 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 (without giving effect to any choice or conflict of law provisions or rules
thereof). 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.
10.8.
Counterparts and Facsimiles. This Agreement may be executed, including execution by facsimile, portable document format
(.pdf), or other electronic signature, in multiple counterparts, each of which shall be deemed an original, and all of which together
shall be deemed to be one and the same instrument.
[Signature page follows.]
IN
WITNESS WHEREOF, each of CBNA and CBSI have caused this Agreement to be executed by its duly authorized officer, and Employee has executed
this Agreement, in each case as of August 24, 2022, respectively.
| |
COMMUNITY BANK SYSTEM, INC. |
| |
|
| |
By: |
/s/ Michael N. Abdo |
| |
Name: Michael N. Abdo |
| |
Title: EVP and General Counsel |
| |
|
| |
COMMUNITY BANK, N.A. |
| |
|
| |
By: |
/s/ Michael N. Abdo |
| |
Name: Michael N. Abdo |
| |
Title: EVP and General Counsel |
| |
|
| |
JOSEPH F. SERBUN |
| |
|
| |
/s/ Joseph F. Serbun |
EXHIBIT A
CONFIRMATION
AND RELEASE
Reference
is made to that certain Retirement Agreement (the “Agreement”),
by and among Community Bank System, Inc., a Delaware corporation and registered bank holding company (“CBSI”),
Community Bank, N.A., a national banking association (“CBNA,” and together with CBSI,
the “Company”), and JOSEPH F. SERBUN, dated as of August 24, 2022. Capitalized terms
used but not defined in this Confirmation and Release (the “Confirmation”) shall
have the meanings given to them in the Agreement.
By
my signature below, I, Joseph F. Serbun, hereby acknowledge, agree to, and confirm each of the following:
| 1. | My employment with the Company and its affiliates
ended on September 30, 2022 (the “Effective Time”). |
| 2. | As an express condition to my receipt of the
Separation Benefits set forth in the Agreement, I must timely execute and deliver to the Company, and not revoke, a copy of this Confirmation. |
| 3. | By executing this Confirmation, I hereby fully
and forever release and discharge each Released Person from any and all Claims, whether known or unknown, arising through the date of
this Confirmation out of, or in any way related to, my employment by the Company or the termination thereof, including, but not limited
to, any claims for relief or causes of action under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., or any other
federal, state, or local statute, ordinance, or regulation regarding discrimination in employment, and any claims, demands, or actions
based upon alleged wrongful or retaliatory discharge or breach of contract under any state or federal law. |
| 4. | I expressly represent that I have not filed a
lawsuit or initiated any other administrative proceeding against a Released Person and that I have not assigned any Claim against a Released
Person. I further promise not to initiate a lawsuit or to bring any other Claim against any Released Person arising out of or in any way
related to my employment by the Company or the termination of that employment. This Confirmation will not prevent me from filing a charge
with the Equal Employment Opportunity Commission (or similar state agency) or participating in any investigation conducted by the Equal
Employment Opportunity Commission (or similar state agency); provided, however, that any Claims by me for personal relief
in connection with such a charge or investigation (such as reinstatement or monetary damages) would be barred. |
| 5. | My
release of Claims in this Confirmation will not be deemed to release the Company from (a) claims solely to enforce the terms of the Agreement
(including claims under Section 1.2 thereof), (b) claims for benefits (not including severance benefits) under the Company’s employee
welfare benefit plans and employee pension benefit plans, subject to the terms and conditions of those plans, or (c) claims for defense
and indemnification under the Company’s By-Laws or policies of insurance. |
| 6. | I further acknowledge and confirm that, from
the Signing Date set forth in the Agreement until the date I execute this Confirmation, I have continued to be in compliance with my covenants
under Sections 4, and 6 of the Agreement, and that my continued compliance with all terms of the Agreement is an express condition to
my receipt of the Separation Benefits. I expressly and specifically acknowledge that I have fully complied with Section 12 of the Agreement,
which requires me to promptly return to the Company as of the Effective Time all documents and other property in my possession belonging
to the Company. |
| 7. | Rescission Right. I expressly acknowledge and recite that (a) I have read and understand the terms
of this Confirmation in their entirety, (b) I have entered into this Confirmation knowingly and voluntarily, without any duress or coercion;
(c) I have been advised orally and was advised in writing by the Company in the Agreement to consult with an attorney with respect to
this Confirmation before signing it; (d) I was provided twenty-one (21) calendar days after receipt of this Confirmation to consider
its terms before signing it; and (e) I have seven (7) calendar days from the date of signing to terminate and revoke this Confirmation,
in which case this Confirmation shall be unenforceable, null, and void. I may revoke this Confirmation during those seven (7) days by
providing written notice of revocation to the Company at the address specified in Section 7 of the Agreement. For the avoidance of doubt,
if I fail to execute and deliver this Confirmation to the Company within twenty-one (21) days following the Effective Time, or timely
revoke it in accordance with this Section 7, the Company’s obligation to provide the Separation Benefits shall immediately terminate. |
| 8. | Sections 9 and 10 of the Agreement are incorporated
by reference, mutatis mutandis, as though fully set forth in this Confirmation. |
* * * * *
This Confirmation
and Release has been executed by the undersigned on the date set forth below.
|
|
|
| JOSEPH F. SERBUN |
|
DATE (to be on or within 21 days following August 24, 2022) |
APPENDIX 1
OUTSTANDING EQUITY AWARDS AND TREATMENT1
| Grant Date | |
Type | |
Exercise
Price (if
applicable) | | |
Total Number of
Unvested as of
Effective Time | | |
To Vest | | |
To Be
Forfeited | |
| March 20, 2018 | |
Option | |
$ | 55.92 | | |
| 556 | | |
| 556 | | |
| | |
| March 20, 2019 | |
Option | |
$ | 59.41 | | |
| 1,428 | | |
| 1,428 | | |
| | |
| March 17, 2020 | |
Option | |
$ | 51.64 | | |
| 2,984 | | |
| 2,984 | | |
| | |
| March 16, 2021 | |
Option | |
$ | 79.66 | | |
| 3,321 | | |
| 3,321 | | |
| | |
| March 15, 2022 | |
Option | |
$ | 71.78 | | |
| 2,912 | | |
| 2,912 | | |
| | |
| March 20, 2018 | |
Restricted Stock | |
| — | | |
| 133 | | |
| 133 | | |
| | |
| March 20, 2019 | |
Restricted Stock | |
| — | | |
| 345 | | |
| 345 | | |
| | |
| March 17, 2020 | |
Restricted Stock | |
| — | | |
| 628 | | |
| 628 | | |
| | |
| March 16, 2021 | |
Restricted Stock | |
| — | | |
| 768 | | |
| 768 | | |
| | |
| March 15, 2022 | |
Restricted Stock | |
| — | | |
| 724 | | |
| 724 | | |
| | |
| March 15, 2022 | |
Performance Stock | |
| — | | |
| 2,898 | 2 | |
| 483 | | |
| 2415 | |
1
For the avoidance of doubt, no options, restricted stock, performance stock, or other equity awards shall vest except as
expressly set forth in this Appendix 1 (subject to the terms of the Confirmation and Release), notwithstanding the fact that additional
vesting may have otherwise been provided under the terms of the Company’s equity plan or an applicable award agreement (whether
pursuant to a retirement in “good standing” provision or otherwise).
2
Performance stock is shown at the “maximum” level of achievement.
