EX-10.7 Employment Agreement - Brown 2001



 






EX-10.7




(Exhibit 10.7) Employment Agreement for Randolph C. Brown




Amended 6/2001




EMPLOYMENT AGREEMENT




     This Employment Agreement (the “Agreement”) is made and entered into as of the 1st
day of August 2003, between National Bank of Geneva (“Employer”), a bank chartered under the
laws of New York having its principal office at 2 Seneca Street, Geneva, New York 14456 and
Randolph C. Brown (“Executive”), an individual residing at 114 Bradley Drive, Olean, New York
14760.



     WHEREAS, Employer wishes to employ Executive in an executive capacity, as its President, and
Executive wishes to accept such employment on the terms and conditions set forth herein;



     NOW, THEREFORE, in consideration of the mutual promises, benefits and covenants herein
contained, Employer and Executive hereby agree as follows:



     1. Effective Date; Term.



     1.1 Effective Date. This Agreement shall be effective commencing on the date hereof
(the “Effective Date”).



     1.2 Initial Term. Employer employs Executive, and Executive accepts such employment,
for a three (3) year period commencing on the Effective Date (the “Initial Term”).



     1.3 Renewal Term. This Agreement will automatically renew for successive three year
terms (each a “Renewal Term”) upon the expiration of the Initial Term or a subsequent Renewal Term
unless either party provides written notice to the other at least ninety (90) days before the end
of the Initial Term or Renewal Term that such party does not intend to renew this Agreement upon
the expiration thereof.



     1.4 Termination. This Agreement may be terminated prior to the expiration of the
Initial Term or any Renewal Term as provided in Sections 4.1 and 4.4 of this Agreement (see Early
Retired Employee).



     2. Scope of Employment.



     2.1 Position and Duties. During the term of this Agreement, Employer shall employ
Executive to serve as the President of Employer. In such capacity, Executive shall perform such
executive, administrative and operational duties as may be assigned to Executive from time to time
by the Board of Directors of Employer, provided that such assignments are materially consistent
with the current job description.



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     2.2 Exclusive Efforts. Executive agrees to serve Employer faithfully and to the best
of Executive’s ability and to devote Executive’s entire business time, attention and efforts to the
interests and business of Employer, its subsidiaries and their affiliates.



     2.3 Compliance with Laws. Executive agrees at all times to strictly adhere to and
perform all his duties in accordance with applicable laws, rules and regulations and the written
policies and procedures of Employer in effect from time to time.



     3. Compensation, Benefits and Expenses.



     3.1 Base Salary. Except as otherwise provided in this Agreement, during the
period from the Effective Date through December 31, 2003 (the “First Year”) Employer shall pay to
Executive a base salary at a rate of $190,000 per year (the “Base Salary”). The Base Salary may be
increased, in the sole discretion of Employer, in a manner comparable to other senior executives,
during the remainder of the terms of this Agreement, but may not be decreased. Employer shall pay
the Base Salary to Executive in equal installments pursuant to Employer’s standard payroll policies
and Executive’s salary shall be subject to such withholding or deductions as may be mutually agreed
between Employer and Executive or required by law.



     3.2 Bonus. In addition to the salary set forth in Section 3.1, Executive may receive
bonuses as follows:




3.2.1 If the Employer meets or exceeds target performance factors pursuant to the Employer’s
Senior Management Incentive Compensation Plan, the Executive shall be paid a bonus which
shall be determined by the Compensation Committee of the Board of Directors of Employer.




3.2.2 The bonus earned by Executive each year during the term of this Agreement, if any,
shall be paid to Executive in a lump sum promptly after the Employer’s audited annual
financial results are publicly disclosed.




3.2.3 Payment of any bonus shall be subject to such withholding or deductions as may be
mutually agreed between Employer and Executive or required by law.



     3.3 Incentive Stock Plan Benefits. During the period of his employment, Executive
shall be entitled to receive grants of options under any incentive stock plan operated by Financial
Institutions, Inc. (“FII”) for its employees and those of its subsidiaries, in such amounts as may
be determined by the FII Board of Directors or the FII Compensation Committee in a manner
comparable to other senior executives of FII.



     3.4 Fringe Benefits. During the period of his employment, Executive shall be entitled
to participate in FII’s plans for the welfare and benefit of its employees to the extent Executive
satisfies the requirements provided in such health plans, including health standards, and other
qualifications for participation. In the event Executive becomes a “Retired Early Employee” as
defined in subparagraph 4.4.1, or is terminated for reasons other than those set forth in
subparagraphs 4.1.3, 4.1.4, 4.1.6 or 4.1.7 health insurance and dental benefits will be continued
as if Executive continued to remain an employee for the remainder of the Initial Term or



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Renewal Term then in effect, or until Executive obtains a position offering comparable
benefits, whichever occurs first.




     3.5 Vacation and Holidays. During the term of this Agreement, Executive shall accrue
paid vacation in accordance with Employer’s policies of four (4) weeks per calendar year.
Executive shall be entitled to take accrued vacation days and paid holidays in accordance with
Employer’s policies applicable to its employees generally. Executive may not carry forward
vacation days from year to year.



     3.6 Expenses. During the term of this Agreement, Employer authorizes Executive to
incur reasonable and necessary out-of-pocket business expenses in the course of performing his
duties and rendering services hereunder in accordance with Employer’s policies with respect
thereto, and Employer shall reimburse Executive for all such expenses, provided (i) such expenses
and the purpose for which they were incurred, are in accordance with Employer’s policies, and (ii)
Executive timely submits to Employer expense reports and substantiation of the expenses in
accordance with Employer’s policies.



     3.7 Country Club Dues and Automobile Expenses. During the term of this Agreement,
Employer shall reimburse Executive for monthly membership dues at a country club of Executive’s
choosing, and shall provide Executive with use of a suitable automobile.



     4. Termination of Employment.



     4.1 Events of Termination. Executive’s Employment by Employer shall terminate at the
expiration of the Initial Term or any Renewal Term provided timely notice is given as provided in
Section 1.3 and shall terminate prior to the expiration of the then current term, if any of the
following occur:




	 	4.1.1  	the death of Executive;
	 
	 	4.1.2  	the date on which Executive is (i) determined to be “permanently disabled” as
defined under the disability insurance policy covering Executive, or (ii) if Executive
is not covered by any such disability policy, Executive is determined to be “totally
disabled” by the Board of Directors of Employer based upon the advice of a board
certified physician reasonably acceptable to Employer and Executive or his legal
representative, which may include a determination that Executive is or may be unable,
because of physical or mental illness or incapacity or otherwise, to fulfill his duties
under this Agreement for six consecutive months
	 
	 	4.1.3  	the commission by Executive of, or the determination by the Board of
Directors, based on reasonable evidence of misconduct as presented by a law enforcement
agency, or as a result of an internal or external audit or investigation, that the
Executive has committed (i) a criminal offense involving the violation of state or
federal law, (ii) a breach of fiduciary duty, (iii) a material act of dishonesty, fraud
or misrepresentation, or (iv) any act of moral turpitude which the Board of Directors
determines has or may be reasonably expected to have a material detrimental impact on
Employer’s business or operations, or which may prevent, because of its demonstrated or
demonstrable effect on employees, regulatory




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agencies or customers, Executive from effectively performing his executive and other
duties under this Agreement;




	 	4.1.4  	Executive materially neglects to satisfactorily perform the duties which
Executive is required to perform under this Agreement or performs such duties other
than in good faith, as determined by the Board of Directors. The Board will provide a
written notice to the Executive, specifying the unsatisfactory performance and suggest
what must be done to improve and maintain such performance. The written notice will
also specify the time period (considered probationary period) given the Executive to
correct such conduct.
	 
	 	4.1.5  	the termination of Executive’s employment by Employer during the term of this
Agreement for any reason without cause other than pursuant to Sections 4.1.1, 4.1.2,
4.1.3 or 4.1.4;
	 
	 	4.1.6  	Executive’s resignation or retirement; or
	 
	 	4.1.7  	the mutual consent to such termination in writing by Executive and Employer.





     4.2 Time of Termination. Executive’s employment with Employer shall terminate
immediately upon Executive’s death, upon written notice of termination from Employer or Executive
upon the occurrence of an event specified in Sections 4.1.2, 4.1.3, 4.1.5 or 4.1.6, upon the
expiration of the cure period specified in Section 4.1.4, on the date specified in the agreement
terminating Executive’s employment pursuant to Section 4.1.7, or upon expiration of the Initial
Term or a Renewal Term if timely notice is given pursuant to Section 1.3 (as applicable, the
“Termination Date”). Employer’s and Employee’s obligations under this Agreement shall terminate
upon such termination of employment without any further action by the parties except to the extent
specifically provided herein.




4.3 Effect of Termination of Employment. Following the Termination Date:




4.3.1 Executive shall return all property of Employer as provided in Section 6 of this
Agreement;




4.3.2 Executive’s base salary shall cease to accrue;




4.3.3 Subject to Section 4.4, the Board of Directors shall pay an appropriate bonus to
Executive as his bonus or other incentive compensation for the period through the
Termination Date computed consistently with the manner in which Executive’s bonus or
incentive compensation would have been determined for such period, as defined in Section
3.2, if Executive’s employment had not terminated;




4.3.4 Executive’s participation in FII’s benefit plans shall cease except as required by
law, the terms of the plan(s) or as provided in subparagraph 3.4 of this Agreement;




4.3.5 Executive shall cease to accrue vacation days and shall be paid for unused vacation
time accrued in accordance with Employer’s policies applicable to employees generally; and



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4.3.6 Executive shall submit any claims for reimbursement of business expenses incurred in
accordance with Section 3.5 within the time period required under Employer’s policies
generally or Employer will not be obligated to reimburse such expenses.




4.3.7 In the case of an Early Termination, the Employer shall have no further liability to
Executive hereunder, except as explicitly stated in this Agreement, other than for earned
but unpaid compensation and those benefits (accrued but unpaid) to which Executive is
entitled under this Agreement through the Termination Date, including termination in the
cases listed in Section 3.4, continued fringe benefits as provided in such Section 3.4.




Upon Termination of Employment, for any reason, all split dollar insurance policies in
effect on the Executive’s life will terminate. The Executive shall have the right, under
the terms of the split dollar agreement, to purchase the policies by paying to the
Corporation an amount as defined in Article 7.1 of the Split Dollar Agreement.




4.3.8 If, during the term of this Agreement, the Executive is terminated for reasons other
than those set forth in subparagraphs 4.1.1, 4.1.2, 4.1.3, 4.1.4, 4.1.6 or 4.1.7, Employer
shall, during the one year period after the Termination Date, make equal monthly payments or
a single lump sum payment to the Executive (which shall not be deemed base annual salary
payments) in an amount such that the present value of all such payments, determined as of
the Termination Date, equals the sum of (a) the Base Salary Amount paid to Executive, and
(b) the annual incentive compensation earned by Executive for the most recent tax year
ending before Termination Date occurred. It shall be at the discretion of the Compensation
Committee, as to whether the payment is made as a single lump sum payment or equal monthly
payments.




4.4. Change of Control and Change of Authority 




4.4.1 Retired Early Employee. If a Change of Control and Change of Authority, as
such terms are defined in subparagraph 4.4.7 below, occurs during the term of the
Executive’s employment under this Employment Agreement, either the Executive, on the one
hand, or Employer, on the other, may elect by written notice, given to the other party or
parties, at any time within twelve (12) months after such Change of Control and Change of
Authority, to terminate the employment of the Executive by Employer, whereupon the Executive
will become a “Retired Early Employee,” and will be entitled to receive such payments as are
provided hereafter in this Section 4.4. Such election and the termination of the
Executive’s employment shall become effective on the first day of the second calendar month
commencing after delivery of the notice or on such earlier date as the Executive in his sole
discretion may specify (the “Effective Date”).




4.4.2 Cash Payments. If the Executive should become a Retired Early Employee
hereunder, Employer shall, during the period commencing on the Effective Date and ending two
years thereafter (the “Pay-Out Period”), make equal monthly payments or a single lump sum
payment to the Executive (which shall not be deemed base annual salary payments) in an
amount such that the present value of all such payments, determined as of the Effective
Date, equals the sum of two times the Base Salary Amount paid to



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Executive, as such term is defined in subparagraph 4.4.7 below, plus the sum of the annual
bonus earned by Executive, for the most recent two (2) tax years ending before the date on
which the Change of Control and Change of Authority occurred. The Executive shall request
the method of payment, however, it shall be at the discretion of the Compensation Committee,
as to whether the payment is made as a single lump sum payment or equal monthly payments.
The payment(s) provided for in subparagraph 4.3.8 do not apply to Retired Early Employees
who receive cash payment(s) pursuant to this subparagraph.




If at any time during the Pay-Out Period the Compensation Committee of the Board in its sole
discretion shall determine, upon application of the Retired Early Employee supported by
substantial evidence, that the Retired Early Employee is then under a severe financial
hardship resulting from (i) a sudden and unexpected illness or accident of the Retired Early
Employee or any of his dependents (as defined in section 152(a) of the Internal Revenue
Code), (ii) loss of the Retired Early Employee’s property due to casualty, or (iii) other
similar extraordinary and unforeseeable circumstance arising as a result of events beyond
the control of the Retired Early Employee, Employer shall make available to the Retired
Early Employee, in one (1) lump sum, an amount up to but not greater than the present value
of all monthly payments remaining to be paid to him in the Pay-Out Period, calculated as of
the date of such determination by the Compensation Committee of the Board, for the purpose
of relieving such severe financial hardship to the extent the same has not been or may not
be relieved by (xi) reimbursement or compensation by insurance or otherwise, (xii)
liquidation of the Retired Early Employee’s assets (to the extent such liquidation would not
itself cause severe financial hardship), or (xiii) distributions from other benefit plans.
If (a) the lump sum amount thus made available is less than (b) the present value of all
such remaining monthly payments, Employer shall continue to pay to the Retired Early
Employee monthly payments for the duration of the Pay-Out Period, but from such date forward
such monthly payments will be in a reduced amount such that the present value of all such
reduced payments will equal the difference between (b) and (a), above. The Retired Early
Employee may elect to waive any or all payments due him under this subparagraph.




4.4.3 Acceleration of Stock Options. All options and other rights that Executive
may hold to purchase or otherwise acquire Common Stock of FII shall immediately become
vested and exercisable in full for the total number of shares that are or might become
purchasable thereunder, in each case without further condition or limitation except the
giving of notice of exercise and the payment of the purchase price thereunder (but without
amendment of the plan under which they were issued). At his discretion, Executive may elect
to surrender to Employer his rights in any such options and rights held by him and, upon
that surrender, Employer shall pay him an amount in cash equal to the aggregate spread
between the exercise prices of all those options and rights and the value of the Common
Stock purchasable thereunder (or of any other security into which the Common Stock has been
exchanged or converted) as of the date of the termination of employment, the value to be
determined by the reported last sale price of the Common Stock or that other security (or
the mean between the reported last bid and asked prices) on that date on NASDAQ (or, if it
is not NASDAQ, on whatever may then be the



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principal exchange or quotation system on which the Employer’s Common Stock or that other
security is traded at that time).




4.4.4 Life Insurance Policies. Employer shall repay any policy loans previously
taken on the Employer’s insurance policies on Executive’s life (provided that the directors
of Employer were given written notice promptly after the making of any such loans which were
made while Executive was the president and chief executive officer of Employer), and then
shall transfer to Executive any and all of its right, title, and interest in and to all
Employer life insurance policies on Executive’s life (and upon that transfer, Executive
shall be deemed to have released Employer from any and all obligations it then owes to him
to maintain and pay premiums on those policies, all other provisions of any agreements under
which those policies were agreed to be maintained, however, to remain in effect).




Upon termination of employment, all split dollar policies in effect on the Executive’s life
will terminate. The Executive shall have the right, under the terms of the split dollar
agreement, to purchase the policies by paying to the Corporation an amount as defined in
Article 7.1 of the Split Dollar Agreement.




4.4.5 Death of Retired Early Employee. If the Retired Early Employee dies before
receiving all monthly payments payable to him under subparagraph 4.4(b), above, Employer
shall pay to the Retired Early Employee’s estate, one (1) lump sum payment in an amount
equal to the present value of all such remaining unpaid monthly payments, determined as of
the date of death of the Retired Early Employee. If the Retired Early Employee was
receiving health insurance and dental benefits pursuant to paragraph 3.4 hereof at the time
of death, employer shall continue to provide such health insurance and dental benefits to
the dependents of the deceased Retired Early Employee for the duration specified in
paragraph 3.4, if the Retired Early Employee had not died.




4.4.6 Indemnification of Executive. In the event a Change of Control and Change of
Authority occurs, Employer shall indemnify Executive for all reasonable legal fees and
expenses subsequently incurred by Executive through legal counsel approved in advance by
Employer [(which approval shall not be unreasonably withheld)] in seeking to obtain or
enforce any right or benefit provided under this Employment Agreement, including but not
limited to the rights and benefits provided under this Section 4.4 and whether or not
Executive has become a Retired Early Employee hereunder, provided, however, that such right
to indemnification will not apply if and to the extent that a court of competent
jurisdiction shall determine that any such fees and expenses have been incurred as a result
of Executive’s bad faith or willful misconduct [or if such a court dismisses the action
seeking to enforce the right or benefit for failure to state a claim]. Indemnification
payments payable hereunder by Employer shall be made not later than thirty (30) days after a
request for payment has been received from Executive with such evidence of indemnifiable
fees and expenses as Employer may reasonably request.




4.4.7 Definitions.



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     (i) The “Base Salary Amount” for purpose of this Paragraph 4.4 shall equal the annual
compensation payable by Employer to Executive and includable by Executive in gross income
for the most recent year ending before the date on which the Change of Control and Change of
Authority occurred.




     (ii) A “Change of Control” shall be deemed to have occurred if




          (A) any individual corporation (other than FII), partnership, trust,
association, pool, syndicate, or any other entity or any group of persons
acting in concert becomes the beneficial owner, as that concept is defined
in Rule 13d-3 promulgated by the Securities and Exchange Commission under
the Securities Exchange Act of 1934, as the result of any one or more
securities transactions (including gifts and stock repurchases but excluding
transactions described in subdivision (B), following), of securities of FII
possessing twenty percent (20%) or more of the voting power for the election
of directors of such entity,




          (B) there shall be consummated any consolidation, merger or
stock-for-stock exchange involving FII or the securities of FII in which the
holders of voting securities of FII immediately prior to such consummation
own, as a group, immediately after such consummation, voting securities of
FII (or, if FII does not survive such transaction voting securities of the
corporation surviving such transaction) having less than fifty percent (50%)
of the total voting power in an election of directors of FII (or such other
surviving corporation), excluding securities received by any members of such
group which represent disproportionate percentage increases in their
shareholdings vis-à-vis the other members of such group,




          (C) “approved directors” shall constitute less than a majority of the
entire Board of Directors, with “approved directors” defined to mean the
members of the Board of Directors of Employer as of the date of this
Agreement and any subsequently elected members who shall be nominated or
approved by a majority of the approved directors on the Board prior to such
election, or




          (D) there shall be consummated any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions, excluding
any transaction described in subdivision (B), above), of all, or
substantially all, of the assets of FII to a party which is not controlled
by or under common control with FII.




     (iii) A “Change of Authority” shall be deemed to have occurred if upon the occurrence
of a Change in Control, Executive, without his/her written consent, is required by Employer
to accept any demotion, loss of title, or office, reduction in his annual compensation or
benefits, or relocation of his principal place of employment by more than 25 miles from its
location immediately prior to the Change in Control; provided,



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     however, that Executive may consent in writing to any such demotion, loss, reduction or
relocation.



     5. Confidentiality; Inventions.



     5.1 Confidential Information. Executive has and will have access to and participate
in the development of or be acquainted with confidential or proprietary information and trade
secrets related to the business of Employer, its subsidiaries and any affiliates (collectively, the
“Companies”), including but not limited to (i) business plans, software programs, operating plans,
marketing plans, financial reports, operating data, budgets, wage and salary rates, pricing
strategies and information, terms of agreements with suppliers or customers and others, customer
lists, reports, correspondence, tapes, disks, tangible property and specifications owned by or used
in the Companies’ businesses; (ii) operating strengths and weaknesses of the Companies’ officers,
directors, employees, agents, suppliers and customers, and/or (iii) information pertaining to
future developments such as, but not limited to, research and development, software development or
enhancement, future marketing plans or ideas, and plans or ideas for new services or products, (iv)
all information which is learned or developed by Executive in the course and performance of his
duties under this Employment Agreement, including without limitation, reports, information and data
relating to the Employer’s acquisition strategies, and (v) other tangible and intangible property
which is used in the business and operations of the Companies but not made publicly available (i)
through (v) are, collectively, (the “Confidential Information”).



     5.2 Treatment of Confidential Information; Confidentiality Agreements. Executive
shall not, directly or indirectly, disclose, use or make known for his or another’s benefit any
Confidential Information of the Companies or use such Confidential Information in any way except in
the best interests of the Companies in the performance of Executive’s duties under this Agreement.
In addition, to the extent that Employer has entered into a confidentiality agreement with any
other person or entity Executive agrees to comply with the terms of such confidentiality agreement
and to be subject to the restrictions and limitations imposed by such confidentiality agreements as
if he was a party thereto.



     5.3 Inventions. Executive shall promptly disclose both orally and in writing to
Employer all discoveries, ideas, software, developments, discoveries, designs, improvements,
innovations and inventions (collectively referred to herein as “Inventions”), whether patentable or
not, either relating to the existing or contemplated business, products, services, plans,
processes, or procedures of Employer, or suggested by or resulting from Executive’s work at
Employer, or resulting wholly or in part from the use of Employer’s time, material, facilities or
ideas, which Executive made or conceived or may make or conceive, whether or not during working
hours, alone or with others, at any time during the term of this Agreement or within one year
thereafter, and Executive agrees that all such inventions shall be the exclusive property of the
Employer.



     5.4 Assignment of Inventions. Executive hereby assigns to Employer all his rights and
interests in and to all such inventions and all patents, copyrights, trademarks or other types of
intellectual property protection which may be obtained on them, in this and all foreign countries.
At Employer’s expense, but without charge to it, Executive agrees to execute,



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acknowledge and deliver to Employer any specific assignments to any such inventions or other
relevant documents and to take any such further action as may be considered necessary by Employer
at any time to obtain or defend letters patent in any and all countries, to obtain documents
relating to registration, ownership or transfer of copyrights, to vest title in such inventions in
Employer or its assigns, or to obtain for Employer any other legal protection for such inventions.




     5.5 Survival of Obligations. The obligations of Executive under this Section 5 shall
survive the termination of Executive’s employment and the expiration or termination of this
Agreement.



     6. Return of Employer’s Property. Immediately upon the Termination Date, Executive
shall deliver to Employer all copies of data, information and knowledge, including, without
limitation, all notes, reference materials, sketches, diagrams, reproductions, memoranda,
documentation and records incorporating or reflecting any Confidential Information, documents,
correspondence, notebooks, reports, computer programs, names of full-time and part-time employees
and consultants, and all other materials and copies thereof (including computer disks and other
electronic media) relating in any way to the business of Employer in any way obtained by Executive
during the period of his employment with Employer, along with any automobile provided by Employer
for Executive’s use (the “Employer’s Property”). The Employer’s Property shall belong exclusively
to the Employer and shall be delivered to the Employer immediately upon termination of Executive’s
employment with the Employer, for whatever reason said termination occurs. The obligations of
Executive under this Section 6 shall survive the termination of Executive’s employment and the
expiration or termination of this Agreement.



     7. Non-competition and Non-solicitation.



     7.1 Non-competition. During the term of this Agreement and during the period for
which Executive is entitled to receive compensation after the termination of this Agreement
pursuant to subparagraphs 4.3.8 or 4.4.2, regardless of whether such compensation is paid in a lump
sum rather than monthly payments, Employee shall not engage, anywhere within New York State,
whether directly or indirectly, as principal, owner, officer, director, agent, employee, consultant
or partner, in the management of a bank holding company, commercial bank, savings bank, credit
union or any other financial services provider that competes with FII, its subsidiaries or its
products or programs (“Restricted Activities”), provided that the foregoing shall not restrict
Executive from engaging in any Restricted Activities which Employer directs Executive to undertake
or which Employer otherwise expressly authorizes. The foregoing shall not restrict Executive from
owning less than 5% of the outstanding capital stock of any company which engages in Restricted
Activities, provided that Executive is not otherwise involved with such company as an officer,
director, agent, employee or consultant



     7.2 Scope and Breach of Non-Competition. Subject to Executive’s continuing compliance
with the provisions of Section 7.1, Executive may be a principal, owner, officer, director, agent,
consultant or partner, of any corporation, partnership or other entity. The foregoing provisions
of Section 7.1 shall not be held invalid because of the scope of the territory covered, the actions
restricted thereby, or the period of time such covenant is operative. In the event of a breach or
threatened breach by the Executive of Section 7.1, Employer shall be



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entitled to a temporary restraining order and an injunction restraining Executive from the
commission of such breach. Nothing herein shall be construed as prohibiting Employer from pursuing
any other remedies available to it for such breach or threatened breach, including the recovery of
money damages.




     7.3 Non-solicitation. During the term of this Agreement and for a two (2) year period
following the Termination Date, Executive shall not, directly or indirectly, without the written
consent of Employer: (i) recruit or solicit for employment any employee of Employer or FII or
encourage any such employee to leave their employment with Employer or FII, or (ii) solicit, induce
or influence any customer, supplier, lessor or any other person or entity which has a business
relationship with Employer or FII to discontinue or reduce the extent of such relationship with
Employer or FII.



     7.4 In the event that the Executive breaches any of the provisions of paragraphs 7.1,7.2, or
7.3, the cash payments provided for by subparagraphs 4.3.8 or 4.4.2 shall cease immediately.
Executive shall have no further entitlement to receive cash payments pursuant to subparagraphs
4.3.8 or 4.4.2 and Employer shall have no further liability for such payments after the date of
Executive’s breach.



     7.5 The Executive and the Employer believe that the restrictions and covenants in this section
are reasonable and enforceable under the circumstances. However, if any one or more of the
provisions in this section shall, for any, reason be held to be excessively broad as to time,
duration, geographic scope, activity, or subject, it shall be construed by limiting and reducing it
so as to be enforceable to the extent compatible with law and with the Executive’s and the
Employer’s intentions as stated herein.



     7.6 Survival of Obligations. The obligations of Executive and Employer under this
Section 7 shall survive the termination of Executive’s employment and the expiration or termination
of this Agreement.



     8. Miscellaneous.



     8.1 Remedies. Each of the parties hereto shall have all rights and remedies set forth
in this Agreement. All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law or any other agreement or contract to which such person is a party. Each
party shall be entitled to enforce such rights specifically (without the requirement of posting a
bond or other security), to recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. Without limiting the generality of the
foregoing, Executive specifically agrees that any breach or threatened breach of Sections 5, 6 or 7
would cause irreparable injury to Employer, that money damages would not provide an adequate remedy
to Employer, and that Employer shall accordingly have the right and remedy (i) to obtain an
injunction prohibiting Executive from violating or threatening to violate such provisions, (ii) to
have such provisions specifically enforced by any court of competent jurisdiction, and (iii) to
require Executive to account for and pay over to Employer all compensation, profits, monies,
accruals, increments or other benefits derived or received by Executive as the result of any
transactions constituting a breach of such provisions.



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     8.2 Entire Agreement; Amendments and Waivers. This Agreement (including the schedule
hereto) represents the entire understanding and agreement between the parties hereto with respect
to the subject matter hereof and can be amended, supplemented or changed, and any provision hereof
can be waived, only by a written instrument making specific reference to this Agreement signed by
the party against whom enforcement of any such amendment, supplement, modification or waiver is
sought. The waiver by any party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a further or continuing waiver of such breach or as a waiver of any
other or subsequent breach. No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of such right, power or remedy by such party preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.



     8.3 Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York without reference to its principles of conflicts of law.



     8.4 Notices. All notices, demands, solicitations of consent or approval, and other
communications hereunder shall be in writing and shall be delivered personally, mailed, sent by
telefax or sent by recognized commercial courier (e.g., Federal Express). If delivered personally,
such notice shall be deemed to be given when delivered to the intended recipient. If delivered by
mail, such notice shall be deemed to be given five (5) days after having been deposited in the
United States mail so addressed, with postage thereon prepaid. If delivered by telefax, such
notice shall be deemed given when transmission of the notice is complete to the telefax number of
the other party. If delivered by recognized commercial carrier, such notice shall be deemed given
one (1) day after having been delivered to a recognized commercial carrier for overnight delivery.
All such notices shall be addressed to the address set forth in the preamble to this Agreement or
to such other address which such party shall have given to the other party for such purpose by
notice hereunder.



     8.5 Captions. The headings used in this Agreement are intended for reference purposes
only and shall not control or affect in any manner the meaning or interpretation of any of the
provisions of is Agreement.



     8.6 Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the remaining provisions of this
Agreement, and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted. All provisions of this Agreement shall be enforced to the
full extent permitted by law.



     8.7 Interpretation. The parties acknowledge and agree that: (i) each party and its
counsel reviewed and negotiated the terms and provisions of this Agreement and have contributed to
its revision; (ii) the rule of construction to the effect that any ambiguities are resolved against
the drafting party shall not be employed in the interpretation of this Agreement; and (iii) the
terms and provisions of this Agreement shall be construed fairly as to all parties hereto,
regardless of which party was generally responsible for the preparation of this Agreement.



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     8.8 Counterparts. This Agreement may be executed in any number of copies, each of
which shall be deemed an original, and all of which together will be deemed one and the same
instrument.



     8.9 Successors and Assigns. All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind, and inure to the benefit of the respective
successors and permitted assigns of the parties hereto whether so expressed or not. Neither party
shall transfer or assign this Agreement or any of their rights or obligations hereunder, whether by
operation of law or otherwise, without the prior written consent of the other party hereto. Any
attempted transfer or assignment of this Agreement or any rights or obligations hereunder in
violation of this provision shall be void ab initio.



IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above
written.




	 	 	 	 	 	 	 	 	 
	

	 	Financial Institutions, Inc. 
	 	 	 	 	 	National Bank of Geneva
	By:

	 	 	 	 
	 	By:	 	 
	

	 	 
	 	 	 	 	 	 
	

	 	Peter G. Humphrey
	 	 	 	 	 	Randolph C. Brown
	

	 	President & CEO
	 	 	 	 	 	President & CEO






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