EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of January, 2000, ("Agreement") among ARROW
FINANCIAL CORPORATION, a New York corporation with its principal place of business at
250 Glen Street, Glens Falls, New York 12801 ("Arrow"), its wholly-owned subsidiary, GLENS
FALLS NATIONAL BANK AND TRUST COMPANY, a national banking association with its
principal place of business at 250 Glen Street, Glens Falls, New York 12801 (the "Bank"), and
THOMAS L. HOY, residing at 25 Pershing Road, Queensbury, New York 12804 (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:
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.
Term
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, 2002, 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.
Annual Review. On or before December 31 of each subsequent year during the
term of this Agreement, the Board of Directors of Arrow (the "Arrow Board"),
or any committee of the Arrow Board 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 such year and the Replacement Agreement shall take effect as of January 1 of
the ensuing year. If the Arrow Board or the Committee shall vote 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 shall continue in full force and effect
and the rights and obligations of each of the parties hereto shall not be changed or
affected in any way.
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 $275,000.00, payable by the Bank (or if the Bank shall fail to
make payment, by Arrow) 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 Section 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 Section 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 Duty to Seek Other Employment. Amounts payable to any Retired Early
Employee under this Paragraph 6 shall not be reduced by the amount of any
compensation received by such Retired Early Employee from any other employer
or source during the Pay-Out Period, and no Retired Early Employee shall be
under any obligation to seek other employment or gainful pursuit during such
Pay-Out Period as a result of this Agreement.
(f) Definitions.
(i) The "Base Amount" for purpose of this Paragraph 6 shall equal the average
annual compensation payable by the Bank to the Executive and includable by
the Executive in gross income for the most recent five (5) taxable years
ending before the date on which the Change of Control or Change of
Authority occurred.
(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 setting forth the reasons
Arrow intends to terminate the Executive for cause;
(B) 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.
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 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.
(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 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 total amount of base annual salary payments which would have been
payable to the Executive during the remaining portion of the calendar year in
which such termination occurs and during the two (2) ensuing calendar years had
the Executive continued his employment under this Agreement for the duration of
the period. For purposes of computing the amount of the lump sum payment, it
shall be assumed that the Executive's current base salary on the effective date of
termination would not have changed and no bonus would have been paid to him
during the period specified in the foregoing sentence. Any such termination
without cause 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.
(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.
8. Competition Restriction
In the event the Executive is terminated for cause under Paragraph 7 or improperly
terminates his own employment hereunder, then during the period beginning on the
date of termination of the Executive's employment and continuing for two (2) years
after such date, the Executive shall not, without the prior approval of the Arrow
Board, certified to him by the Secretary or Acting Secretary of Arrow, become an
officer, employee, agent, partner or director of any other business in substantial
competition with the Bank, Arrow, or any other company or bank affiliated with
Arrow, including any branch or office of any of the foregoing. Such restriction shall
apply to any such other business doing business in any county in the State of New
York in which Arrow, the Bank or any such other affiliated company or bank is then
conducting any material business or into which, to the knowledge of the Executive at
the time of such termination, any such entity has immediate plans to expand its
activities in material respects. The provisions of this Paragraph 8 shall not apply in
the event that the Executive becomes a Retired Early Employee under Paragraph 6 or
the Executive's employment terminates in accordance with the first sentence of
Paragraph 2.
It is the intention of the parties to restrict the activities of the Executive under this
Paragraph 9 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 competition restriction 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 business or
territory to which such restriction pertains and/or the period of time during which it
operates, or effect any other change to the extent necessary to render such restriction
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 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 restriction on competition set forth in
Paragraph 8 expires.
15. 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.
16. 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.
17. 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 17 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:
Michael F. Massiano
Acting Chairman, Personnel Committee
GLENS FALLS NATIONAL BANK AND TRUST
COMPANY
By:
Michael F. Massiano
Acting Chairman, Personnel Committee
"EXECUTIVE"
Thomas L. Hoy
