EMPLOYMENT
AGREEMENT
This Employment Agreement (the
“Agreement”) is made effective as of October 5,
2009 (the “Effective Date”), by and between The Evans
Agency, Inc. (the “Agency”), Evans Bancorp, Inc. (the
“Company”), and Robert G. Miller, Jr. (the
“Executive”). Any reference to the
“Employer” shall mean both the Company and the
Agency.
WHEREAS , the Executive is
currently employed as President of the Agency pursuant to an
employment agreement that was effective January 1, 2007 (the
“Original Agreement”) and with ENB Insurance Agency,
Inc., a predecessor to the Agency; and
WHEREAS , the Employer desires
to terminate the Original Agreement and replace it with this
Agreement; and
WHEREAS , Executive is willing
to serve the Employer on the terms and conditions hereinafter set
forth and has agreed to such changes; and
NOW, THEREFORE , in
consideration of the mutual covenants herein contained, and upon
the other terms and conditions hereinafter provided, the parties
hereby agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the term of this Agreement,
Executive agrees to serve as President of the Agency (the
“Executive Position”), and will perform all duties and
will have all powers associated with such position as set forth in
the job description for such Executive Position as established by
the Board of Directors of the Company (the “Board”)
from time to time, and as may be set forth in the Bylaws and
Certificate of Incorporation of the Company or the Agency. During
the term of the Agreement, Executive also agrees to serve, if
elected, as an officer and/or director of any subsidiary or
affiliate of Employer and in such capacity carry out such duties
and responsibilities reasonably appropriate to that office.
Executive shall report to the President and Chief Executive
Officer.
2. TERM AND DUTIES.
(a) Three Year Contract;
Daily Renewal . The Executive’s period of employment with
the Employer under this Agreement (“Employment Period”)
shall begin on the Effective Date and, except as provided in
(b) below, shall renew daily, such that the remaining
unexpired term of the Agreement shall always be thirty-six
(36) months, until the date that the Agency gives the
Executive written notice of non-renewal (“Non-Renewal
Notice”). Except as otherwise provided in (b) below, the
Employment Period shall end on the date that is thirty-six
(36) months after the date of the Non-Renewal Notice, unless
the parties agree that the Employment Period shall end on an
earlier date.
(b) Effective upon the date that
is the Executive’s 62 nd birthday, the Employment
Period shall not renew daily, this Agreement shall have a remaining
(and declining) three year term, and the Employment Period shall
expire and this Agreement shall terminate upon the date that is the
Executive’s 65 th birthday.
(c) Annual Performance
Evaluation . On either a fiscal year or calendar year basis,
(consistently applied from year to year), the Chief Executive
Officer of the Employer (the “Chief Executive Officer”)
or the Board shall conduct an annual evaluation of the
Executive’s performance. The annual performance evaluation
proceedings shall be reported to the Board and included in the
minutes of the Board.
(d) Continued Employment
Following Termination of Employment Period . Nothing in this
Agreement shall mandate or prohibit a continuation of the
Executive’s employment following the expiration of the
Employment Period.
(e) Duties; Membership on
Other Boards . During the Employment Period, except for periods
of absence occasioned by illness, reasonable vacation periods, and
reasonable leaves of absence approved by the Chief Executive
Officer or the Board, Executive shall devote substantially all his
business time, attention, skill, and efforts to the faithful
performance of his duties hereunder including activities and
services related to the organization, operation and management of
the Employer; provided, however, that, with the approval of the
Chief Executive Officer or the Board, Executive may serve, or
continue to serve, on the boards of directors of, and hold any
other offices or positions in, business companies or business
organizations, which, in the Board’s or Chief Executive
Officer’s judgment, will not present any conflict of interest
with the Employer, or materially affect the performance of
Executive’s duties pursuant to this Agreement it being
understood that membership in and service on boards or committees
of social, religious, charitable or similar organizations does not
require Chief Executive Officer or Board approval pursuant to this
Section. For purposes of this Section, Chief Executive Officer or
Board approval shall be deemed to have been granted as to service
with any such business company or organization that Executive was
serving as of the date of this Agreement and disclosed to the Chief
Executive Officer or Board.
(f) Licenses and Permits
. Employee shall maintain any and all licenses and permits required
to be owned or possessed by him under applicable law (including
NASD License) in order to perform the duties required by him
hereunder. Employee shall keep and maintain all of such licenses
and permits in full force and effect during the term of this
Agreement. The Employer will pay any required license or permit
fees.
3. COMPENSATION, BENEFITS AND
REIMBURSEMENT.
(a) Base Salary . The
Employer shall pay Executive a salary of not less than $219,600.
per year (“Base Salary”). Such Base Salary shall be
payable biweekly, or with such other frequency as officers and
employees are generally paid. During the period of this Agreement,
Executive’s Base Salary shall be reviewed at least annually.
Such review shall be conducted by the Chief Executive Officer or
Board, and the Employer may increase, but not decrease,
Executive’s Base Salary (with any increase in Base Salary to
become “Base Salary” for purposes of this
Agreement).
(b) Bonus and Incentive
Compensation .
(i) Executive will be entitled
to participate in any equity-based incentive compensation programs
as the Employer may make available to senior executive officers
from time to time. Nothing paid to Executive under any such plan or
arrangement will be deemed to be in lieu of other compensation to
which Executive is entitled under this Agreement.
(ii) In addition to Base Salary
and any bonus and incentive compensation programs available to
Executive under Section 3(b)(i), Executive shall be entitled
to receive “the employee portion” of residual
commissions earned on life insurance, equity products and annuities
sold through M&W Group, Inc. prior to September 1,
2000.
(iii) Executive shall be
eligible to receive an annual bonus in such amounts and subject to
the achievement of bonus objectives to be determined from time to
time by the Company’s Board of Directors, in its sole
discretion.
(c) Employee Benefits
.
(i) Executive shall be entitled
to participate in all employee benefit plans, programs and
arrangements as generally provided by the Agency or Company to
their senior executive officers and for which Executive shall
qualify. Without limiting the foregoing, the Executive may
participate in the medical, health and other insurance (including
life insurance) plans maintained by the Employer for the benefit of
employees.
(c)(ii) Notwithstanding the
preceding provisions of this Section 3©, and subject to
the following conditions and limitations, in lieu of family health
care insurance provided generally to Company employees, the Company
shall use commercially reasonable efforts to maintain for and
provide to the Executive a long term health care insurance policy
that covers both the Executive and his spouse, provided the annual
cost of such long term health care insurance policy does not exceed
the cost of family health insurance coverage provided by the
Company to employees generally.
(d) Paid Time Off . Executive
is entitled to no less than 5 weeks of paid vacation per year,
plus 5 personal days and customary Agency holidays. Any unused paid
time off during an annual period shall be treated in accordance
with the Employer’s personnel policies as in effect from time
to time.
(e) Company Car; Expense
Reimbursements . The Company shall provide the Executive with a
Company-owned vehicle, the specific make and model to be determined
by the Company which shall be comparable to the vehicle currently
provided by the Company to the Executive. During the Employment
Period, the Employer shall pay or reimburse Executive for his
reasonable country club dues, all reasonable travel, entertainment
and other reasonable expenses incurred by Executive during the
course of performing his obligations under this Agreement. The
Agency also shall reimburse Executive for fees and expenses
associated with membership in trade associations or professional
memberships related to the business of the Agency or the Company.
All reimbursements under this Section 3(e) shall be paid as soon as
practicable by the Employer upon presentation to the Employer of an
itemized account of such expenses in such form as the Employer may
reasonably require; provided, however, that no payment shall be
made later than March 15 of the year immediately following the
year in which the expense was incurred.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF
TERMINATION.
(a) Upon the occurrence of an
Event of Termination (as herein defined), the provisions of this
section shall apply. As used in this Agreement, an “Event of
Termination’’ shall mean and include any one or more of
the following:
(i) the involuntary termination
by the Company or the Agency of Executive’s full-time
employment hereunder for any reason other than a Termination for
Cause, as defined in Section 8 hereof, or a termination upon
Retirement as defined in Section 7 hereof, or a termination
for Disability as set forth in Section 6 hereof; and
(ii) Executive’s
resignation from the Employer’s employ upon any of the
following events (which shall be treated as termination of
employment for “Good Reason”), unless consented to by
Executive:
(A) failure to appoint
Executive to the Executive Position set forth in Section 1
above, or a material change in Executive’s function, duties,
or responsibilities, which change would cause Executive’s
position to become one of lesser responsibility, importance, or
scope from the position and responsibilities described in
Section 1 above (and any such material change shall be deemed
a continuing breach of this Agreement);
(B) a relocation of
Executive’s principal place of employment to a location that
is more than thirty-five (35) miles from the location of the
Employer’s principal executive offices as of the date of this
Agreement;
(C) a material reduction in the
benefits and perquisites, including Base Salary, to Executive from
those being provided in the Agreement as of the Effective Date
(except for any reduction that is part of a reduction in pay or
benefits that is generally applicable to officers or
employees);
(D) a liquidation or
dissolution of the Agency or the Company other than liquidations or
dissolutions that are caused by reorganizations that do not affect
the status of the Executive; or
(E) a material breach of this
Agreement by the Employer.
Upon the occurrence of any event described in clause
(ii) above, Executive shall have the right to elect to
terminate his employment under this Agreement by resignation within
90 days after the event giving rise to said right to elect,
which termination by Executive shall be an Event of Termination.
The Employer shall have 30 days to remedy any event set forth
in clauses (ii)(A) through (E) above; provided, however, that
the Employer shall be entitled to waive such period and make an
immediate payment hereunder. If the Employer remedies the event
within such 30-day cure period, then no Good Reason shall be deemed
to exist with respect to such event. If the Employer does not
remedy the event within such 30-day cure period, then the Executive
may deliver a Notice of Termination, as defined in Section 9(c)
hereof, for Good Reason at any time within 60 days following
the expiration of such cure period.
(iii) Executive’s
involuntary termination of employment without cause or voluntary
resignation for Good Reason from the Employer’s employ within
one (1) year following a Change in Control (as defined in
Section 5 below).
(b) Within 30 days
following the occurrence of an Event of Termination, the Employer
shall pay Executive, or, in the event of his subsequent death, his
beneficiary or beneficiaries, or his estate, as the case may be, as
severance pay or liquidated damages, or both, a lump sum cash
amount equal to three times the sum of (x) highest annual rate
of Base Salary paid to Executive at any time under the Agreement,
and (y) the average annual i