EMPLOYMENT AGREEMENT
Exhibit 10.12
(As Amended 6/28/00)
AGREEMENT made as of the 1st day of January, 2003, ("Agreement") among ARROW
FINANCIAL CORPORATION, a New York corporation with its principal place of business at
000 Xxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx 00000 ("Arrow"), its wholly-owned subsidiary, GLENS
FALLS NATIONAL BANK AND TRUST COMPANY, a national banking association with its
principal place of business at 000 Xxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx 00000 (the "Bank"), and
XXXXXX X. XXX, residing at 00 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx 00000 (the
"Executive").
Recitals
WHEREAS, Arrow and the Bank, consider the maintenance of a competent and
experienced executive management team to be essential to the long-term success of Arrow and
the Bank; and
WHEREAS, in this regard, Arrow and the Bank have determined that it is in the best
interests of each that the Executive continue to serve as President and Chief Executive Officer of
Arrow and the Bank, pursuant to a written employment agreement; and
WHEREAS, Arrow and the Bank have agreed with the Executive that the pre-existing
employment agreement between the Executive and each of them should be replaced by this
Agreement.
NOW, THEREFORE, in furtherance of the interests described above and in consideration
of the respective covenants and agreements herein contained, the parties hereto agree as follows:
1. Employment
Arrow and the Bank agree to employ the Executive and the Executive agrees to continue to serve as President and Chief Executive Officer of Arrow and the Bank
during the term of this Agreement.
2. Term
a. The term of this Agreement shall commence on the date hereof and, unless the
Executive becomes a Retired Early Employee under Paragraph 6 of this
Agreement or such employment is earlier terminated as provided in Paragraph 7
of this Agreement, employment under this Employment Agreement shall
terminate on December 31, 2005, or such earlier date on which the Executive's
retirement (including early retirement if the Executive so elects) becomes effective
under any retirement plan of Arrow then in effect.
b. Annual Review. On or before December 31 of each year during the term of this
Agreement, the Board of Directors of Arrow (the "Arrow Board"), or the
committee of the Arrow Board, if any, duly authorized to make determinations
regarding executives and the terms of their employment (the "Committee"), will
consider and vote upon a proposal to extend to the Executive an offer to replace
this Agreement with a new employment agreement (the "Replacement
Agreement") commencing January 1 of the ensuing year. The Replacement
Agreement will be for a new term of three years, will provide for a base annual
salary for the Executive at commencement of the Replacement Agreement at least
equal to the base annual salary of the Executive as of December 31 of the year
just completed (the "Preceding Year-End"), will provide for other benefits having
an aggregate value to the Executive at least equal to the aggregate value of the
other benefits provided to the Executive as of the Preceding Year-End, and will
contain other terms and conditions relating to the Executive's position and duties,
place of performance, rights upon a change of control of Arrow or the Bank or a
change of authority of the Executive, and rights in connection with any early
termination of the employment of the Executive that are, in each such instance, at
least as favorable to the Executive as the terms and conditions relating to such
matters under this Agreement and generally shall be as favorable to the Executive
as is this Agreement, as of the Preceding Year-End. If the Arrow Board or the
Committee shall vote to offer such a Replacement Agreement to the Executive
and the Executive shall accept, this Agreement shall terminate as of December 31
of the year of such offer and acceptance and the Replacement Agreement shall
take effect as of January 1 of the ensuing year.
If the Arrow Board or the Committee shall elect not to offer such a Replacement
Agreement to the Executive or the Executive, having been offered such a
Replacement Agreement, shall elect not to accept such Replacement Agreement,
this Agreement and the employment of the Executive hereunder shall continue in
full force and effect from the date of such election until the termination of this
Agreement in accordance with its terms (such period to be referred to hereinafter
as the "Winding-Down Period"), and the rights and obligations of each of the
parties hereunder shall continue unchanged during the Winding-Down Period
except as may be specifically provided otherwise in this Agreement.
3. Position and Duties
The Executive shall continue to serve as President and Chief Executive Officer of
Arrow and the Bank and shall have duties, responsibilities, and authority as normally
attend such positions or as may reasonably be assigned to the Executive from time to
time by the Arrow Board or the Board of Directors of the Bank (the "Bank Board").
The Executive shall devote substantially all his working time and efforts to the
business and affairs of Arrow and the Bank, provided however, that the Executive
may, with the approval of the Arrow Board, serve as a director or officer of any non-competing business or engage in any other activity, including but not limited to,
charitable or community activity, to the extent that they do not inhibit the
performance of his duties hereunder.
4. Place of Performance
In connection with the Executive's employment hereunder, the Executive shall be based at the principal executive offices of the Bank, except for required travel on
business. The Executive shall not be required to change his residence from the area in
which he now resides. The Bank shall furnish the Executive with office space,
stenographic assistance, and such other facilities and services as shall be suitable to
the Executive's position and adequate for the performance of his duties hereunder.
5. Compensation
(a) Salary. Upon commencement of this Agreement, the base annual salary of the
Executive should be $340,000.00, payable by the Bank in equal bi-weekly
installments or at such other intervals as shall be agreed upon by the parties. In
addition, the Executive shall receive from the Bank or Arrow such annual bonus,
if any, as may be determined by the Arrow Board or the Committee. The
Executive's base annual salary may be increased from time to time in accordance
with the normal business practices of Arrow and the Bank as determined by the
Arrow Board or the Committee, and, if so increased, such base annual salary shall
not thereafter during the Executive's employment under this Agreement be
decreased and the obligation of the Bank hereunder to pay the Executive's base
annual salary shall thereafter relate to such increased base annual salary.
Compensation of the Executive by base annual salary payments shall not prevent
the Executive from participating in any other compensation or benefit plan of
Arrow or the Bank in which he is entitled to participate and participation in any
such other compensation or benefit plan shall not in any way limit or reduce the
obligation of the Bank to pay the Executive's base annual salary hereunder.
(b) Other Benefits. In addition to the compensation provided for in subparagraph (a)
above, the Executive shall be entitled during the term of his employment under
this Agreement (i) to participate in any and all employee benefit programs or
stock purchase programs of Arrow or the Bank now or hereafter in effect and
open to participation by qualifying employees of Arrow or the Bank generally,
including but not limited to the retirement plan, supplemental retirement plan,
employee stock purchase plan and employee stock ownership plan of Arrow or
the Bank, and (ii) to enjoy certain personal benefits provided by Arrow or the
Bank, including but not limited to:
(A) life insurance on the life of the Executive, at no cost to the Executive,
under a group plan maintained by Arrow;
(B) disability insurance for the Executive, at no cost to the Executive, under a group plan maintained by Arrow;
(C) comprehensive medical and dental insurance under a group plan
provided by Arrow, with the Executive to pay only those amounts
required to be paid thereunder by covered employees generally under
the cost-sharing arrangements in effect from time to time under such
plan;
(D) reimbursement in full of all business, travel and entertainment expenses incurred by the Executive in performing his duties hereunder; and
(E) fully paid vacation during each calendar year in accordance with the
vacation policies of Arrow in effect from time to time.
Arrow shall not make any material changes in any of the personal benefits itemized
above adversely affecting the Executive unless such change occurs pursuant to a
program applicable to all executive officers of Arrow and the adverse effect on the
Executive is not proportionately greater than the adverse effect of the change on any
other executive officer of Arrow previously enjoying such benefit.
6. Change of Control or Change of Authority
(a) Retired Early Employee. If a Change of Control or Change of Authority (as such
terms are defined in subparagraph 6(f) below) occurs during the term of the
Executive's employment under this Employment Agreement, either the Executive,
on the one hand, or Arrow or the Bank, 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 or Change of Authority, to terminate the employment of
the Executive by Arrow and the Bank, whereupon the Executive will become a
"Retired Early Employee," and will be entitled to receive such payments as are
provided hereafter in this Paragraph 6. 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").
(b) Cash Payments. If the Executive should become a Retired Early Employee
hereunder, the Bank shall, during the period commencing on the Effective Date
and ending two years thereafter (the "Pay-Out Period"), make equal monthly
payments 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 two hundred ninety-nine percent
(299%) of the Base Amount, as such term is defined in subparagraph 6(f) below.
If at any time during the Pay-Out Period the Arrow 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, the Bank 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 Arrow 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,
the Bank 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.
(c) Death of Retired Early Employee. If the Retired Early Employee dies before
receiving all monthly payments payable to him under subparagraph 6(b), above,
the Bank shall pay to the Retired Early Employee's spouse, or if the Retired Early
Employee leaves no spouse, to the estate of the Retired Early Employee, 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.
(d) Indemnification of Executive. In the event a Change of Control or Change of
Authority occurs, Arrow and the Bank shall indemnify the Executive for all legal
fees and expenses subsequently incurred by the Executive in seeking to obtain or
enforce any right or benefit provided under this Employment Agreement, not
limited to the rights and benefits provided under this Paragraph 6 and whether or
not the 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 the Executive's bad faith. Indemnification
payments payable hereunder by Arrow or the Bank shall be made not later than
thirty (30) days after a request for payment has been received from the Executive
with such evidence of indemnifiable fees and expenses as Arrow or the Bank may
reasonably request.
(e) No Offset. Amounts payable to a Retired Early Employee under this Paragraph 6
shall not be subject to any offset or reduction for (i) any amounts owed or
claimed to be owed by the Retired Early Employee to Arrow or the Bank or their
affiliates or (ii) any amounts of compensation or income received or generated by
the Retired Early Employee as a result of any other employment or self-employment of the Retired Early Employee during the Pay-Out Period. The
Retired Early Employee shall be under no obligation to seek other employment or
gainful pursuit during the Pay-Out Period as a result of this Agreement, and shall
be prohibited from accepting certain other forms of employment and from
engaging in certain other types of business during the Pay-Out Period (as well as
during certain other post-termination of employment periods) as and to the extent
specified in Paragraph 8 of this Agreement.
(f) Allocation. If the Executive should elect to become a Retired Early Employee
under this Paragraph 6 and as a result of such election should become entitled to
receive certain cash payments during the Pay-Out Period as set forth above,
Arrow shall determine, as soon as practicable following its receipt from the
Executive of written notice of such election, the amount, if any, of such future
cash payments that may properly be allocated to the Retired Early Employee's
future performance of his obligations not to compete with, solicit customers or
employees from, or disparage Arrow or its affiliates under Paragraph 8 of this
Agreement, with such allocation to be expressed as a single dollar amount equal
to the present value on the Effective Date of the amounts of the required future
payments thus allocated. When thus determined, the dollar amount of this
allocation shall be communicated by Arrow to the Retired Early Employee.
(g) Section 280G Tax Gross-Up. Notwithstanding anything to the contrary
contained elsewhere in this Agreement or in any other agreement, plan or policy
of or binding upon Arrow or the Bank, in the event that the aggregate payments
or benefits to be made or afforded to the Executive under (i) this Agreement, (ii)
any and all other agreements between the Executive and Arrow or its affiliates
and (iii) any and all plans and arrangements of Arrow or its affiliates in which the
Executive participates, should cause the Executive to be obligated to pay or to
become liable for any Federal excise taxes under Section 4999(a) of the Code
and/or any state or local excise taxes attributable to payments that qualify as
"excess parachute payments" under Section 280G of the Code (collectively, such
Federal, state and local taxes to be referred to as "Parachute Taxes"), Arrow
promptly shall pay on behalf of the Executive or reimburse the Executive for the
latter's payment of the following:
(i) such Parachute Taxes;
(ii) all Parachute Taxes payable by the Executive as a result of Arrow's payment or reimbursement of amounts under subsection (i), above, this subsection (ii) or subsection (iii) below; and
(iii) all Federal, state, and local income taxes payable by the Executive as a
result of Arrow's payment or reimbursement of amounts under subsections
(i) and (ii), above, and this subsection (iii).
(h) Definitions.
(i) The "Base Amount" for purpose of this Paragraph 6 shall equal the average
Annual Compensation (as defined below) of the Executive for the most
recent five (5) taxable years ending before the date on which the Change of
Control or Change of Authority occurred. "Annual Compensation" as used
in the foregoing sentence shall mean, for any given taxable year of the
Executive, all compensation payable by Arrow or the Bank to the Executive
that is includible in the gross income of the Executive for such year for
federal income tax purposes, plus any amount of salary otherwise payable by
Arrow or the Bank to the Executive for such year (A) that is deferred under
Section 401(k) of the Code under any plan maintained by Arrow or the Bank
permitting such deferrals, or (B) that is deferred by the Executive under any
nonqualified retirement or income deferral plan maintained by Arrow or the
Bank, to the extent deferred amounts under such plan are excludable for
federal income tax purposes from the gross income of the deferring employee
in the year of deferral.
(ii) A "Change of Control" shall be deemed to have occurred if (A) any individual
corporation (other than Arrow), 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 Arrow possessing
twenty-five percent (25%) 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 Arrow or the securities of
Arrow in which the holders of voting securities of Arrow immediately prior
to such consummation own, as a group, immediately after such
consummation, voting securities of Arrow (or, if Arrow 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 Arrow (or such other surviving corporation),
excluding securities received by any members of such group which represent
disproportionate percentage increases in their shareholdings vis-a-vis the
other members of such group, (C) "approved directors" shall constitute less
than a majority of the entire Arrow Board, with "approved directors" defined
to mean the members of the Arrow Board 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 Arrow 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 Arrow to a party which is not controlled by or under
common control with Arrow.
(iii) "Change of Authority" shall be deemed to have occurred if the Executive is
assigned duties by Arrow which, in the reasonable opinion of the Executive
have materially less authority than those duties currently being performed by
him and otherwise described herein.
7. Early Termination of Employment
The employment of the Executive hereunder by Arrow and the Bank may be terminated or may terminate, other than as provided in Paragraph 2 of this Agreement
or as permitted under Paragraph 6 of this Agreement, under the circumstances set
forth below.
(a) Termination for Cause. Arrow may terminate the Executive's employment under
this Agreement prior to the normal expiration of its term for cause. "Cause" shall
mean:
(i) any willful misconduct by the Executive which is materially injurious to
Arrow or the Bank, monetarily or otherwise;
(ii) any willful failure by the Executive to follow the reasonable directions of the
Arrow Board or the Bank Board; or
(iii) any failure by the Executive substantially to perform any reasonable
directions of the Arrow Board or the Bank Board (other than failure
resulting from disability), within thirty (30) days after delivery to the
Executive by the respective Board of a written demand for substantial
performance, which written demand shall specifically identify the manner in
which the respective Board believes that the Executive has not substantially
performed.
Notwithstanding the foregoing, the employment of the Executive hereunder shall not be deemed to have been terminated for cause unless and until:
(A) reasonable notice is given to the Executive in writing setting forth the
reasons Arrow intends to terminate the Executive for cause;
(B) not sooner than thirty (30) days after delivery to the Executive of such
notice, an opportunity is provided for the Executive to be heard before
the Arrow Board with counsel; and
(C) after such hearing or opportunity to be heard, written notice of final
termination for cause is delivered to the Executive, setting forth the
specific reasons therefor, which termination shall be effective as of the
date of the delivery of such notice.
Termination for cause by Arrow shall require the affirmative vote of at
least two-thirds (2/3) of the Arrow Board. The Executive will not be
entitled to any further compensation for any period subsequent to the
effective date of such termination, except for severance pay, if any, in
accordance with the then existing severance policies of Arrow;
provided, however, that any such termination for cause becoming
effective after the Executive shall have elected to become a Retired
Early Employee under Paragraph 6 of this Agreement will not affect the
right of the Executive to receive all of the payments provided for
therein.
(b) Termination Without Cause. Arrow may terminate the Executive's employment
under this Agreement prior to the normal expiration of its term without cause
upon thirty (30) days' written notice. Termination without cause by Arrow shall
require the affirmative vote of at least two-thirds (2/3) of the entire Arrow Board.
In the event of any such termination without cause, the Bank shall pay to the
Executive on the effective date of such termination one (1) lump sum payment in
an amount equal to the greater of (i) the total amount of base annual salary
payments which would have been payable to the Executive during the remaining
term of the Agreement, assuming no early termination of the Agreement under
Paragraph 6 or this Paragraph 7 and assuming the current base annual salary of
the Executive on such date is unchanged throughout such remaining term, or (ii)
an amount equal to one hundred percent (100%) of the current base annual salary
of the Executive on such date. No attempted termination without cause under
this subparagraph 7(b) shall be effective if the Executive shall have the right to
elect, and shall have elected, to become a Retired Early Employee under
Paragraph 6 of this Agreement, in which latter case the Executive will retain all of
the rights of a Retired Early Employee specified in Paragraph 6, including the
right to receive certain payments thereunder.
(c) Termination for Disability. If, as a result of the Executive's incapacity due to
physical or mental illness, the Executive shall not have performed his duties
hereunder on a full time basis for six (6) consecutive months, the Executive's
employment under this Agreement may be terminated by Arrow upon thirty (30)
days' written notice. Such termination for disability shall require the affirmative
vote of a majority of the entire Arrow Board. The Executive's compensation
during any period of disability prior to the effective date of such termination shall
be the amounts normally payable to him in accordance with his then current base
annual salary, reduced by the sum of the amounts, if any, paid to the Executive
under disability benefit plans maintained by Arrow. The Executive shall not be
entitled to any further compensation from the Bank for any period subsequent to
the effective date of such termination, except for severance pay in accordance
with then existing severance policies of Arrow; provided, however, that any such
termination for disability occurring after the Executive shall have elected to
become a Retired Early Employee under Paragraph 6 of this Agreement will not
affect the right of the Executive to receive all of the payments provided for
therein.
(d) Termination for Breach by Employer. In the event that Arrow or the Bank shall
have materially breached any provision of this Agreement and such breach shall
not have been cured within ten (10) days after delivery of written notice thereof
to the breaching party by the Executive, identifying the breach with reasonable
particularity, the Executive may cease to perform and may terminate this
Agreement and his employment with Arrow and the Bank hereunder, without
thereby forfeiting any cause of action he may have against the breaching party or
parties as a result of such breach or otherwise.
(e) Consensual Termination. All parties hereto may agree at any time to terminate
this Agreement and the Executive's employment hereunder upon such terms and
conditions as the parties may agree.
(f) Death. In the event of the death of the Executive during the term of his
employment hereunder, the Bank shall pay to the beneficiary or beneficiaries of
the Executive listed on the Executive's current beneficiary designation on file with
Arrow or the Bank, or in the absence of any such designation, to the Executive's
estate, a lump sum amount equal to the base annual salary of the Executive as of
the date of death, and upon payment of such amount and any other amounts due
and owing hereunder and unpaid as of the date of death, this Employment
Agreement shall thereupon terminate and no further amounts shall be payable
hereunder.
(g) Termination by Executive During Winding-Down Period. At any point during a Winding-Down Period, the Executive may terminate his employment under this Agreement prior to the normal expiration date of his employment hereunder, for any reason or no reason, upon written notice delivered to Arrow. Such termination of employment shall become effective on the date indicated in the written notice, which date shall not be less than thirty (30) days nor more than ninety (90) days after delivery of the written notice. In the event of such termination of employment, neither Arrow nor the Bank shall have any obligation under this Agreement to make any payments or provide any benefits to the Executive, other than the obligation to make the base annual salary payments and to provide those benefits required to be paid or provided through the effective date of termination of employment pursuant to Paragraph 5 hereof, provided, however, that nothing herein shall reduce or affect any obligations that Arrow or the Bank may have to the Executive under any other agreement with the Executive or under any qualified or non-qualified employee benefit plan covering the Executive.
8. Non-Competition; Non-Solicitation; Non-Disparagement
If the employment of the Executive with Arrow and/or the Bank is terminated by any
party under Paragraph 6 or is terminated by the Executive other than pursuant to one
of the provisions of this Agreement specifically authorizing the Executive to so
terminate:
(i) For a period of two (2) years following the effective date of such termination
of employment, the Executive will not, directly or indirectly, manage,
operate, or control, or accept or hold a position as a director, officer,
employee, agent or partner of or adviser or consultant to, or otherwise
perform substantial services for, any bank or insured financial institution or
other corporation or entity engaged in the financial services business or a
corporation or entity controlling any of the foregoing, excluding Arrow and
its affiliates (any such other bank, institution, corporation or entity, a
"Financial Institution"), if, as of the effective date of such termination of
employment, such Financial Institution is in competition with Arrow or any
of its affiliates in the Designated Area (as defined below) by virtue of such
Financial Institution's having any office or branch located within the
Designated Area or having immediate plans to establish any office or branch
within the Designated Area. For purposes of the preceding sentence, the
Designated Area as of any particular time will consist of all counties in the
State of New York in which Arrow or any of its subsidiary banks or other
affiliates engaged in providing financial services then maintains an office or a
branch or has acted to establish an office or a branch.
(ii) For a period of two (2) years following such termination of employment, the
Executive will not, directly or indirectly,
(a) acting on behalf of any Financial Institution, regardless of where such
Financial Institution is located or doing business, solicit business for
such Financial Institution from, or otherwise seek to obtain as a
customer or client of such Financial Institution, any person or entity
that, to the knowledge of the Executive, was a customer or client of
Arrow or any of its subsidiary banks or other affiliates engaged in
providing financial services at any point during the one-year period
immediately preceding the effective date of such termination of
employment; or
(b) acting on behalf of any other corporation or entity, including any
Financial Institution, regardless of where such other corporation or
entity is located or doing business, employ or solicit as an employee of
such corporation or entity or retain or seek to retain as an agent or
consultant of such corporation or entity any individual employed by
Arrow or any of its subsidiary banks or other affiliates engaged in
providing financial services at any point during the one-year period
immediately preceding the effective date of such termination of
employment.
(iii) For a period of ten (10) years following the effective date of such termination of employment, the Executive will not, directly or indirectly, make any one or more statements, declarations, announcements, assertions, remarks, comments or suggestions, orally or in writing, that individually or collectively are, or may be construed as being, defamatory, derogatory, negative, or disparaging to Arrow or its affiliates (including any successor to Arrow by merger or acquisition or any of such successor's affiliates), or to any director, officer, controlling shareholder, employee or agent of any of the foregoing.
It is the intention of the parties to restrict the activities of the Executive under this
Paragraph 8 only to the extent necessary for the protection of the legitimate business
interests of Arrow, and the parties specifically covenant and agree that should any of
the clauses or provisions of the restrictions set forth herein, under any set of
circumstances, be held by a court of competent jurisdiction to be illegal, invalid or
unenforceable under present or future laws effective during the term of this
Agreement, then and in that event, the court so holding may reduce the extent or
duration of such restrictions or effect any other change to such restrictions to the
extent necessary to render such restrictions enforceable by said court.
9. Confidential Information
The Executive specifically acknowledges that all information pertaining to the Bank
and Arrow received by him during the course of his employment hereunder which has
been designated confidential or otherwise has not been made publicly available,
including, without limitation, plans, strategies, projections, analyses, and information
pertaining to customers or potential customers, is the exclusive property of Arrow
and the Executive covenants and agrees not to disclose any of such information,
without the express prior consent of the Arrow Board, during his employment
hereunder or after termination of such employment, to anyone not employed or
engaged by Arrow or a subsidiary thereof to render services to it. The Executive
further covenants and agrees that he will not at any time use any such information,
without such express prior consent, for his own benefit or the benefit of any party
other than Arrow. This Paragraph 9 shall survive termination of the Agreement.
10. Successors and Assigns; Assumption by Successors
This Agreement is a personal services contract which may not be assigned by the Bank or Arrow to, or assumed from the Bank or Arrow by, any other party without
the prior consent of the Executive. All rights hereunder shall inure to the benefit of
the parties hereto, their personal or legal representatives, heirs, successors and
assigns. Arrow will require any successor (whether direct or indirect, by purchase,
assignment, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of Arrow in any consensual transaction expressly to assume
this Agreement and to agree to perform hereunder in the same manner and to the
same extent that Arrow would be required to perform if no such succession had taken
place. References herein to "Arrow" or the "Bank" will be understood to refer to the
successor or successors of Arrow or the Bank, respectively.
11. Notices
Any notice required or desired to be given hereunder shall be in writing and shall be
deemed given when delivered personally or sent by certified or registered mail,
postage prepaid, to the addresses of the other parties set forth in the first Paragraph
of this Agreement, provided that all notices to Arrow or the Bank shall be directed in
each case to the Chief Financial Officer thereof.
12. Waiver of Breach
Waiver by any party of a breach of any provision shall not operate as or be construed
a waiver by such party of any subsequent breach hereof.
13. Invalidity
The invalidity or unenforceability of any provision of this Agreement shall not affect
the validity or enforceability of any other provisions, which shall remain in full force
and effect.
14. Entire Agreement; Written Modification; Termination
This agreement contains the entire agreement among the parties concerning the
employment of the Executive by Arrow and the Bank. No modification, amendment
or waiver of any provision hereof shall be effective unless in writing specifically
referring hereto and signed by the party against whom such provision as modified or
amended or such waiver is sought to be enforced. This Agreement shall terminate as
of the time Arrow or the Bank makes the final payment which it may be obligated to
pay hereunder or provides the final benefit which it may be obligated to provide
hereunder, or, if later, as of the time the last remaining restriction set forth in
Paragraph 8 expires.
15. Payment by Arrow or Bank.
Any obligation of Arrow or the Bank to make a payment under any provision of this
Agreement shall be deemed an obligation of both parties to make such payment, and
the making of such payment by either such party shall be deemed performance of the
obligation to pay by both such parties.
16. Counterparts
This Agreement may be made and executed in counterparts, in which case all counterparts shall be deemed to constitute one original document for all purposes.
17. Governing Law
This Agreement is governed by and is to be construed and enforced in accordance
with the laws of the State of New York.
18. Authorization
The Bank and Arrow represent and warrant that the execution of this Employment
Agreement has been duly authorized by resolution of their respective Boards. This
Paragraph 18 shall survive termination of the Agreement.
IN WITNESS WHEREOF, the parties have executed or caused to be executed this
Employment Agreement as of the day and year first above written.
ARROW FINANCIAL CORPORATION
By:
Xxxxxxx X. Xxxxxx
Chairman, Compensation/Nomination Committee
GLENS FALLS NATIONAL BANK AND TRUST
COMPANY
By:
Xxxxxxx X. Xxxxxx
Chairman, Compensation/Nomination Committee
"EXECUTIVE"
Xxxxxx X. Xxx
