AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT 10.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Employment Agreement by and between Orange Bank & Trust Company (the “Bank”) and Xxxxxx Xxxx (“Executive”) originally entered into effective January 1, 2018 and amended on December 31, 2020 is hereby amended and restated effective December 22, 2023 (the “Agreement”). Any reference to the “Company” shall mean Orange
County Bancorp, Inc. or any successor thereto.
WHEREAS, the Bank wishes to
assure itself of the continued services of Executive for the period provided in this Agreement; and
WHEREAS, in order to induce
Executive to remain in the employ of the Bank and to provide further incentive for Executive to achieve the financial and performance objectives of the Bank, the parties desire to enter into this Agreement; and
WHEREAS, the Bank desires to set
forth the rights and responsibilities of Executive and the compensation payable to Executive, as modified from time to time.
NOW, THEREFORE, in consideration
of the mutual covenants herein contained, and upon the other terms and conditions hereinafter provided, the parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the term of this Agreement, Executive agrees to serve as Executive Vice President, Regional President and Chief Deposit Officer
of the Bank (referred to herein as the “Executive Position”) and will perform the duties and have the responsibilities set forth on Schedule 1 to this
Agreement. Executive shall report directly to the Chief Executive Officer of the Bank. During the period provided in this Agreement, Executive also agrees to serve, if elected, as an officer or director of any subsidiary or affiliate of the Bank and
in such capacity carry out such duties and responsibilities reasonably appropriate to that office.
2. TERM AND DUTIES.
(a) Term and Annual Renewal. The term of this Agreement and the period
of Executive’s employment hereunder shall continue through December 31, 2025 (the “Term”). Commencing on January 1, 2024 and continuing on each January 1st
thereafter (the “Renewal Date”), the Term shall extend automatically for one additional year, unless either the Bank or the Executive by written notice to
the other given at least ninety (90) days prior to such Renewal Date notifies the other of its intent not to extend the same. In the event that notice not to extend is given by either the Bank or the Executive, this Agreement shall terminate as of
the last day of the then current term. Notwithstanding the preceding provisions of this Section, if a Change in Control (as defined in this Agreement) occurs during the Term, the Term shall not end before the first anniversary of the date on which
the Change in Control occurs.
(b) Membership on Other Boards or
Organizations. During the period of his employment hereunder, except for periods of absence occasioned by illness, reasonable vacation periods, and reasonable leaves of absence, Executive will devote all of his business time,
attention, skill and efforts to the faithful performance of his duties under this Agreement, including activities and duties related to the Executive Position. Notwithstanding the preceding sentence, subject to the approval of the Board of
Directors of the Bank (“Board”), Executive may serve as a member of the board of directors of business, community and charitable organizations, provided that in each case such service shall not materially interfere with the performance of his
duties under this Agreement, adversely affect the reputation of the Bank or any other affiliates of the Bank (as determined by the Board), or present any conflict of interest.
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(c) Continued Employment Following Expiration
of Term. Nothing in this Agreement shall mandate or prohibit a continuation of Executive’s employment following the expiration of the Term.
3. COMPENSATION, BENEFITS AND REIMBURSEMENT.
(a) Base Salary. In consideration
of Executive’s performance of the responsibilities and duties set forth in this Agreement, the Bank will provide Executive the compensation specified in this Agreement. The Bank will pay Executive a fixed salary of $ 335,000 per year (“Base Salary”). Executive’s Base Salary will be payable in
accordance with the customary payroll practices of the Bank. During the Term, the Compensation Committee of the Board of Directors of the Bank (“Committee”) may consider increasing, but not decreasing, Executive’s Base Salary as the Committee deems
appropriate. Any change in Base Salary will become the “Base Salary” for purposes of this Agreement.
(b) Annual Bonus. For each fiscal year of the Bank during the Term,
Executive shall be eligible to participate in the Bank’s Annual Incentive Plan (or any successor thereto) (the “Annual Bonus Plan”). An annual bonus awarded
to Executive under the Annual Bonus Plan is referred to herein as an “Annual Bonus.” Executive’s target Annual Bonus under the Annual Bonus Plan shall be
determined by the Committee and shall be commensurate with the target Annual Bonus opportunity available for similarly situated executives of the Bank. The actual amount of Executive’s Annual Bonus shall depend upon the achievement of performance
goals established by the Committee. The terms and conditions of the Annual Bonus Plan and the payments to Executive thereunder shall be applied on the basis not less favorable to Executive than to other similarly situated executives of the Bank.
However, the Committee may in its discretion increase Executive’s Annual Bonus. The payment of any Annual Bonus shall be subject to all the terms and conditions of the applicable Annual Bonus Plan, including any underlying bonus agreement.
(c) Long-Term Compensation. For each fiscal year of the Bank during the
Term, Executive shall be eligible to participate in the Company’s Long-Term Incentive Program (the “LTIP”) and/or any other long-term compensation program
established by the Company or the Bank from time to time for executive officers. Executive’s target LTIP award opportunity shall be determined by the Committee and shall be no less favorable than the target LTIP opportunity available to other
similarly situated executives of the Bank, with the actual LTIP award to be determined by the Committee on a basis not less favorable to Executive than other similarly situated executives of the Bank generally. The terms and conditions of any LTIP
award (such as the underlying performance goals and/or vesting requirements) shall be subject to Company equity plan and any LTIP award agreement.
(d) Supplemental Executive Retirement Plan. During the Term, Executive
shall be eligible to participate in the Orange Bank & Trust Company Performance-Based Supplemental Executive Retirement Plan (the “SERP”), pursuant to
which the Bank shall make an annual contribution to a book-entry account for the benefit of Executive, with the amount and the terms and conditions of the annual contributions (such as the underlying performance goals, vesting requirements and the
time and manner in which the benefits will be paid) to be determined pursuant to an underlying Participation Agreement, which shall be reasonable and acceptable to the Bank and Executive.
(e) Other Benefit Plans. During the Term, Executive shall be entitled
to participate, on the terms and conditions not less favorable to Executive than other similarly situated executives of the Bank generally, in the Bank’s (A) tax-qualified retirement plans; (B) group life, health and disability insurance plans; and
(C) any other employee benefit plans and programs and perquisites in accordance with the Bank’s customary practices with respect to other similarly situated executives generally, provided that Executive’s participation shall be subject to the terms
of such plans and programs; and provided, further, that nothing herein shall limit the Bank’s right to amend or terminate any such plans or programs.
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(f) Vacation. Executive will be entitled to four (4) weeks of paid
vacation time each calendar year during the Term, in accordance with the Bank’s customary practices, as well as sick leave, holidays and other paid absences in accordance with the Bank’s policies and procedures for executives. Any unused paid time
off during an annual period will be treated in accordance with the Bank’s personnel policies as in effect from time to time.
(g) Expense Reimbursements. The Bank will reimburse Executive for all
reasonable travel, entertainment and other reasonable expenses incurred by Executive during the course of performing his obligations under this Agreement, including, without limitation, fees for memberships in such organizations as Executive and
the Chief Executive Officer mutually agree are necessary and appropriate in connection with the performance of his duties under this Agreement, upon substantiation of such expenses in accordance with applicable policies and procedures of the Bank.
Executive shall be provided a car allowance in the amount of $1,000.00 per month, with the expense of gas and maintenance incurred be paid or reimbursed to Executive by the Bank. In addition, Executive shall be entitled to reimbursement of
membership fees and assessments with respect to a country club located in a county of New York relevant to Executive’s business activities, as approved by the Chief Executive Officer. All reimbursements pursuant to this Section 3(g) shall be
reimbursed upon presentation to the Bank of an itemized account of such expense in such form as the Bank may reasonably require.
4. TERMINATION AND TERMINATION PAY.
Subject to Section 5 of this Agreement which governs the occurrence of a Change in Control, Executive’s employment under this Agreement
may be terminated in the following circumstances:
(a) Death. This Agreement shall
terminate upon Executive’s death, in which event the Bank’s sole obligation under this Agreement shall be to pay Executive’s estate or beneficiary any “Accrued Obligations” as such term is defined in paragraph (f) below.
(b) Disability. This Agreement
shall terminate in the event of Executive becomes “Totally Disabled.” For purposes of this Agreement, Executive shall be “Totally Disabled” if Executive is
deemed disabled for purposes of eligibility for receipt of disability benefits under the Bank’s long-term disability plan, if any, or receipt of Social Security disability benefits. In the event Executive’s employment is terminated due to becoming
Totally Disabled, the Bank shall pay or provide Executive with any Accrued Obligations. In addition, Executive shall continue to receive his full Base Salary under Section 3(a) of this Agreement until he becomes eligible for and receives disability
income under the long-term disability insurance coverage then in effect for the Executive. If Executive elects to continue his group health coverage with the Bank pursuant to COBRA, the Bank shall pay to Executive the “COBRA Payments” for a period
of 18 months or, if earlier, until the date on which Executive receives substantially comparable coverage under another group health insurance plan. The “COBRA
Payments” shall be monthly installment payments, each equal to the monthly COBRA premium in effect as of the date of Executive’s termination of employment for the level of coverage in effect for Executive under the Bank’s group
health plan.
(c) Termination for Cause. The
Board may immediately terminate Executive’s employment at any time for “Cause.” In the event Executive’s employment is terminated for Cause, the Bank’s sole obligation shall be to pay or provide to Executive any Accrued Obligations. Termination for
“Cause” shall mean termination because of, in the good faith determination of the Board, Executive’s:
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i.
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an act of fraud, embezzlement, or theft while employed by the Bank, or indictment or conviction of the Executive for, or plea
of no contest to, a felony, conviction of or plea of no
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contest to a misdemeanor involving moral turpitude, or the arrest and incarceration of Executive for acts by Executive involving moral
turpitude;
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ii.
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contest to a misdemeanor involving moral turpitude, or the arrest and incarceration of Executive for acts by Executive involving moral turpitude;
gross negligence, insubordination, disloyalty, or dishonesty in the performance of the Executive’s duties as an officer of the
Bank; willful or reckless failure by the Executive to adhere to the Bank’s written policies; intentional wrongful damage by Executive to the business or property of the Company and the Bank, including without limitation its reputation,
which in the Board’s sole judgment causes material harm to the Company, the Bank or any of its affiliates, provided, however, that the Bank shall provide Executive with written notice specifying Executive’s actions or conduct that breached
this Section 4(c)(ii) and Executive shall have 30 days to cure or remediate such actions or conduct after receiving such written notice;
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iii.
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removal of Executive from office or permanent prohibition of Executive from participating in the affairs of the Bank by an
order issued under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g) (1); or
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iv.
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acts or omissions in the performance of Executive’s duties having a material adverse effect on the Bank that were not done
or omitted to be done in good faith or which involved intentional misconduct or a knowing violation of law.
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(d) Voluntary Termination by Executive without
Good Reason. Executive may voluntarily terminate employment during the Term upon at least 30 days prior written notice to the Board. Except upon Executive’s voluntary termination “With Good Reason” (as defined below), Executive shall
have no right to receive any compensation or benefits under this Agreement or otherwise upon his voluntary termination of employment, except any Accrued Obligations, provided, however, that any unpaid Annual Bonus as of the date of termination
shall be forfeited. The Bank may accelerate the date of termination upon receipt of written notice of Executive’s voluntary termination.
(e) Termination Without Cause or With Good Reason.
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i.
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The Board may immediately terminate Executive’s employment at any time for a reason other than Cause (a termination “Without Cause”), and Executive may, by written notice to the Board, terminate this Agreement at any time within 90 days following an event constituting
“Good Reason,” as defined below (a termination “With Good Reason”); provided, however, that the Bank shall have 30 days to cure the “Good Reason”
condition, but the Bank may waive its right to cure. Any termination of Executive’s employment shall have no effect on or prejudice the vested rights of Executive under the Bank’s qualified or non-qualified retirement, pension, savings,
thrift, profit-sharing or bonus plans, group life, health (including hospitalization, medical and major medical), dental, accident and long-term disability insurance plans or other employee benefit plans or programs, or compensation plans
or programs in which Executive was a participant.
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ii.
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In the event of termination as described under Section 4(e)(i) and subject to the requirements of Section 4(e)(v), the Bank
shall pay or provide to Executive any Accrued Obligations. In addition, the Bank shall pay Executive, or in the event of Executive’s subsequent death, Executive’s beneficiary, or estate, as the case may be, as severance pay, a cash lump sum
payment equal to the sum of: (i) 100% of Executive’s Base Salary as of Executive’s termination of employment, and (ii) the average of the three (3) most recent Annual Bonuses paid to the Executive prior to
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his termination date. Executive’s severance will be paid in the Bank’s first regular payroll following the effective date of the Release
as described under Section 4(e)(v) of this Agreement.
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iii.
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In addition, the Bank shall pay to Executive the COBRA Payments on a monthly basis commencing with the first month following
Executive’s date of termination and continuing until the earlier of (A) the twelfth (12th) month following Executive’s date of termination; or (B) such time that Executive first becomes eligible for health insurance coverage with
another employer.
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iv.
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“Good Reason” exists if, without
Executive’s express written consent, any of the following occurs:
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(A)
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a material reduction of 10% or more in Executive’s Base Salary or,
following a Change in Control, in Executive’s Annual Bonus opportunity;
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(B)
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a material reduction in Executive’s authority, duties or responsibilities from the position and attributes associated with the Executive
Position;
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(C)
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Executive ceases to report to the Chief Executive Officer of the Bank; or
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(D)
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a change in the geographic location at which Executive must perform services for the Bank by more than 35 miles from the location where it is
contemplated that Executive will be performing Executive’s duties, provided, however, that Executive being asked/requested to provide services to the Bank at its headquarters in Middletown, NY shall not constitute “Good Reason” under this
Section 4(e)(iv).
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(i)
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Executive shall not be entitled to any payments or benefits under this Section 4(e) unless and until Executive executes a release of claims (the
“Release”) against the Bank and any affiliate, and their officers, directors, successors and assigns, releasing said persons from any and all claims,
rights, demands, causes of action, suits, arbitrations or grievances relating to the employment relationship, including claims under the Age Discrimination in Employment Act, but not including claims for benefits under tax-qualified plans
or other benefit plans in which Executive is vested, claims for benefits required by applicable law or claims with respect to obligations set forth in this Agreement that survive the termination of this Agreement. The Release must be
executed and become irrevocable by the 60th day following the date of Executive’s termination of employment, provided that if the 60-day period spans two (2) calendar years, then, to the extent necessary to comply with Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”), the payments and benefits described in this Section 4(e) will be paid, or commence, in the second calendar year.
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(f) Definition of Accrued Obligations. For purposes of this Agreement, and “Accrued Obligation” shall mean: (i) any accrued and unpaid Base Salary of Executive through the date of termination of employment, payable
pursuant to the Bank’s standard payroll policies; (2) except as otherwise provided under Section 4(d) of this Agreement, any earned and unpaid bonus of Executive under the Annual Bonus Plan for any completed fiscal year prior to the date of
termination of employment; (3) any compensation
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and benefits to the extent payable to Executive based on Executive’s participation in any compensation or benefit plan (including pursuant to any
individual or group life insurance plan or policy), program or arrangement of the Bank through the date of termination of employment, payable in accordance with the terms of such plan, program or arrangement; and (4) any expense reimbursement to
which Executive is entitled under the Bank’s standard expense reimbursement policy (as applicable) in Section 3(g) hereof.
(g) Effect on Status as a Director.
In the event Executive is also serving as a director of the Bank or the Company, Executive’s termination of employment under this Agreement for any reason shall also constitute Executive’s resignation as a director of the Bank or the Company, or
any subsidiary or affiliate thereof, to the extent Executive is acting as a director of any of the aforementioned entities.
5. CHANGE IN CONTROL.
(a) Change in Control Defined. For
purposes of this Agreement, the term “Change in Control” shall be deemed to have occurred on the earliest of the following dates:
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(i)
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the date any person or group of persons (as defined in Section 13(d) and 14(d) of the Exchange Act) together with its
affiliates, excluding employee benefit plans of the Company and its Affiliates, is or becomes, directly or indirectly, the “beneficial owner” (as defined in Rule 13d-3 promulgated under the Exchange Act) of securities of the Company
representing twenty percent (20%) or more of the combined voting power of the Company’s then outstanding voting securities (excluding the acquisition of securities of the Company by an entity at least eighty percent (80%) of the outstanding
voting securities of which are, directly or indirectly, beneficially owned by the Company); or
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(ii)
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the date when, as a result of a tender offer or exchange offer for the purchase of securities of the Company (other than such
an offer by the Company for its own securities), or as a result of a proxy contest, merger, share exchange, consolidation or sale of assets, or as a result of any combination of the foregoing, individuals who, at the beginning of any two-
(2) year period during the duration of the Agreement, constitute the Board of Directors of the Company (“Company Board”), plus new directors whose election or nomination for election by the Company’s shareholders is approved by a vote of at
least two-thirds (2/3) of the directors still in office who were directors at the beginning of such two- (2-) year period, cease for any reason during such two- (2) year period to constitute at least two-thirds (2/3) of the members of such
Company Board; or
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(iii)
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the date a merger, share exchange or consolidation of the Company with any other corporation or entity is consummated
regardless of which entity is the survivor, other than a merger, share exchange or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or being converted into voting securities of the surviving or acquiring entity) at least fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving or acquiring entity outstanding
immediately after such merger, share exchange or consolidation; or
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(iv)
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the date the shareholders of the Company approve a plan of complete liquidation or winding-up of the Company; or
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(v)
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the date a sale or
disposition by the Company of all or substantially all of the Company’s assets is consummated.
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To the extent necessary to comply with Code Section 409A, a Change in Control
will be deemed to have occurred only if the event also constitutes a change in the effective ownership or effective control of the Company or the Bank, as applicable, or a change in the ownership of a substantial portion of the assets of the
Company or the Bank, as applicable, in each case within the meaning of Treasury Regulation section 1.409A-3(i)(5).
(b) Change in Control Benefits. In the event of a termination of
Executive’s employment by the Bank (or any successor) Without Cause or by Executive With Good Reason upon or within 12 months of a Change in Control that occurs during the Term, the Bank (or any successor) the Bank shall: (i) pay or provide to
Executive any Accrued Obligations; and (ii) pay Executive, or in the event of Executive’s subsequent death, Executive’s beneficiary or estate, as severance pay, a lump sum payment equal to two (2) times: (i) Executive’s Base Salary (at the rate in
effect when the Change in Control occurs or, if higher, at the rate in effect on Executive’s date of termination), and (ii) the average of the three (3) most recent Annual Bonuses paid to the Executive prior to his termination date. The severance
pay will be paid to Executive within 30 days of Executive’s termination of employment. In addition to the cash payment provide in this paragraph (b), the Bank shall pay to Executive an additional lump sum cash payment equal to eighteen (18) times
the monthly COBRA charge in effect on the Executive’s date of termination for the type of bank-provided group health plan coverage in effect for Executive (e.g., family coverage) on his date of termination. Notwithstanding the foregoing, the
payments and benefits provided in this Section 5(b) shall be payable to Executive in lieu of any payments or benefits that are payable under Section 4(e).
(c) Excise Tax Limitation. In the event it should be determined (in
the manner set forth below) that any payment or distribution of any type to or for the benefit of Executive made by the Bank (referred to in this paragraph (c) as the “Employer”), any person who acquires ownership or effective control of the
Company or ownership of a substantial portion of the Company’s assets in connection with a “change in control” (within the meaning of Code Section 280G and the regulations thereunder) or any affiliate of such person, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Total Payments”), would otherwise exceed the amount that could be received by Executive without the imposition of an excise tax under Code Section 4999 (the “Safe Harbor Amount”), then the Total Payments shall be reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as
determined in accordance with the applicable provisions of Code Section 280G and the regulations thereunder, does not exceed the greater of (i) the Safe Harbor Amount, or (ii) the greatest after-tax amount payable to Executive after taking into
account any excise tax imposed under Code Section 4999 on the Total Payments (such greater amount of (i) or (ii), the “Benefit Limit”). All determinations
under this Section 6 shall be made by an independent compensation consultant, law firm or independent registered public accounting firm selected by the Employer and Executive (the “Advisor”). If a reduction in payments or benefits is necessary so
that the Total Payments do not exceed the Benefit Limit, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of equity awards; reduction of employee benefits. In the event that accelerated
vesting of equity awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of Executive’s equity awards. The provisions of this Section 5, including the calculations, notices, and opinions provided
for herein shall be based upon the conclusive presumption that (A) the compensation provided for in this Agreement and (B) any other compensation earned by Executive pursuant to the Employer’s programs that would have been provided in any event are
reasonable compensation for services rendered, even though the timing of such payment is triggered by the Change in Control; provided, however, that if such Advisor so requests in connection with the opinion required by this Section 5, Executive and the Employer shall obtain, at the
Employer’s expense, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by Executive. The Executive shall receive a copy of all final written reports and/or
opinions issued by the Advisor or executive compensation
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consultants engaged hereunder. Any modification, reduction or elimination of payments necessary to accomplish the foregoing shall be done in accordance
with applicable provisions of Code Section 409A.
6. COVENANTS OF EXECUTIVE.
(a) Non-Competition/Non-Solicitation - Employed with the Bank.
Executive hereby covenants and agrees to comply with the: (1) Non-Solicitation of Employees Covenant; (2) Non-Solicitation of Customers Covenant; and (3) Non-Competition Covenant while employed with Bank during, and after the expiration of, the
Term, as applicable.
(b) Non-Competition/Non-Solicitation - Termination of Employment During the Term.
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(i)
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Termination for Cause/Voluntary Termination Without Good Reason.
In the event of Executive’s termination by the Bank for Cause or voluntary resignation without Good Reason during the Term, Executive agrees to comply with the (1) Non-Solicitation of Employees Covenant; (2) Non-Solicitation of Customers
Covenant; and (3) Non-Competition Covenant for a period of 18 months following Executive’s date of termination.
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(ii)
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Involuntary Termination Without Cause or Voluntary Termination
With Good Reason. In the event of Executive’s termination by the Bank without Cause or voluntary termination With Good Reason during the Term, Executive agrees to comply with the (1) Non-Solicitation of Employees Covenant;
and (2) Non-Solicitation of Customers Covenant for a period of 12 months following Executive’s date of termination.
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(c) Non-Competition/Non-Solicitation – Termination of Employment after the
Expiration of the Term. In the event of Executive’s termination of employment with the Bank for any reason (or no reason) following the expiration of the Term, Executive agrees to comply with the (1) Non-Solicitation of Employees
Covenant and (2) Non-Solicitation of Customers Covenant for a period of 12 months following Executive’s date of termination, provided, however, that the foregoing covenants shall only apply to Executive if the expiration of the Term is on account
of Executive’s election not to renew the Term pursuant to Section 2(a) of this Agreement.
(d) Non-Competition/Non-Solicitation -
Survival of Covenants/Change in Control. The covenants of Executive set forth in this Sections 6(a) 6(b) and 6(c) shall survive the termination of this Agreement. However, Sections 6(b) and 6(c) shall become null and void effective
immediately upon a Change in Control.
(e) Non-Competition/Non-Solicitation - Certain
Definitions. For purposes of this Agreement, the following capitalized terms are defined as follows:
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(i)
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“Non-Solicitation of Employees Covenant” means that Executive shall not, without the written consent of the Bank, either directly or indirectly solicit, offer employment to, or take any other action intended (or
that a reasonable person acting in like circumstances would expect) to have the effect of causing any officer or employee of the Bank, or any of its respective subsidiaries or affiliates, to terminate his or her employment with the Bank
and/or accept employment with another employer.
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(ii)
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“Non-Solicitation of Customers Covenant” means that
Executive shall not, without the written consent of the Bank, either directly or indirectly induce or attempt to induce any client, customer or other business relation (whether (1) current, (2) former, within the six (6) months after such
relationship has been terminated or (3) prospective, provided that there are demonstrable efforts or plans to establish such relationship) of the Bank or any of its respective subsidiaries or affiliates to cease doing business or to reduce
the amount of business they have customarily done or contemplate doing with the Bank or any such subsidiary or affiliate, whether or not the relationship with the Bank or such subsidiary or affiliate and such client, customer or other
business relation was originally established, in whole or in part, through Executive’s efforts, or in any way interfere with the relationship between any such client, customer or business relation, on the one hand, and the Bank or any such
affiliate or subsidiary, on the other hand.
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(iii)
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“Non-Competition Covenant” means that Executive shall
not, without the written consent of the Bank, either directly or indirectly become an officer, employee, consultant, director, independent contractor, agent, joint venturer, partner or trustee of any savings bank, savings and loan
association, savings and loan holding company, commercial bank, credit union, bank or bank holding company, any mortgage or loan broker or any other entity (excluding not-for-profit entities other than credit unions) that competes with the
business of the Bank or any of their direct or indirect subsidiaries or affiliates that has a headquarters, or one or more offices, within the New York Counties of Dutchess, Putnam, Sullivan, Westchester, Rockland, Orange or Bronx, or the
Connecticut County of Fairfield.
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(f) Information/Cooperation.
Executive shall, upon reasonable notice, furnish such information and assistance to the Bank as may be reasonably required by the Bank, in connection with any litigation in which it or any of its subsidiaries or affiliates is, or may become, a
party; provided, however, that Executive shall not be required to provide information or assistance with respect to any litigation between Executive and the Bank or any other subsidiaries or affiliates.
(g) Reliance. Except as otherwise
provided, all payments and benefits to Executive under this Agreement shall be subject to Executive’s compliance with this Section 6, to the extent applicable. The parties hereto, recognizing that irreparable injury will result to the Bank, its
business and property in the event of Executive’s breach of this Section 6, agree that, in the event of any such breach by Executive, the Bank will be entitled, in addition to any other remedies and damages available, to an injunction to restrain
the violation hereof by Executive and all persons acting for or with Executive. Executive represents and admits that Executive’s covenants set forth in this Section 6 are reasonable. Nothing herein will be construed as prohibiting the Bank from
pursuing any other remedies available to them for such breach or threatened breach, including the recovery of damages from Executive.
7. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid by check or direct deposit from the general funds of the Bank (or any
successor of the Bank).
8. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement, along with any agreement referenced herein, contains the entire understanding between the parties hereto and supersedes
any prior employment agreement between the Bank or any
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predecessor of the Bank and Executive, except that this Agreement shall not affect or operate to reduce any benefit or compensation inuring to Executive
under another plan, program or agreement (other than an employment agreement) between the Bank, Company and Executive.
9. NO ATTACHMENT; BINDING ON SUCCESSORS.
(a) Except as required by law, no right to receive payments under this Agreement shall be subject to anticipation, commutation, alienation, sale, assignment, encumbrance, charge,
pledge, or hypothecation, or to execution, attachment, levy, or similar process or assignment by operation of law, and any attempt, voluntary or involuntary, to affect any such action shall be null, void, and of no effect.
(b) The Bank shall require any successor or assignee, whether direct or indirect, by purchase, merger, consolidation or otherwise, to all or substantially all the business or assets
of the Bank, expressly and unconditionally to assume and agree to perform the Bank’s obligations under this Agreement, in the same manner and to the same extent that the Bank would be required to perform if no such succession or assignment had
taken place.
10. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel against the enforcement of any provision of this Agreement, except by
written instrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived
and shall not constitute a waiver of such term or condition for the future as to any act other than that specifically waived.
11. REQUIRED PROVISIONS.
Notwithstanding anything herein contained to the contrary, the following provisions shall apply:
(a) The Board may terminate Executive’s employment at any time, but any termination by the Board other than termination for Cause shall not prejudice Executive’s right to
compensation or other benefits under this Agreement. Executive shall have no right to receive compensation or other benefits under this Agreement for any period after Executive’s termination for Cause.
(b) Notwithstanding anything herein contained to the contrary, any payments to Executive by the Company, whether pursuant to this Agreement or otherwise, are subject to and
conditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and the regulations promulgated thereunder in 12 C.F.R. Part 359.
(c) Notwithstanding anything else in this Agreement to the contrary (with the exception of Section 4(c)(i)), Executive’s employment shall not be deemed to have been terminated
unless and until Executive has a Separation from Service within the meaning of Code Section 409A. For purposes of this Agreement, a “Separation from Service”
shall have occurred if the Bank and Executive reasonably anticipate that either no further services will be performed by Executive after the date of termination (whether as an employee or as an independent contractor) or the level of further
services performed is less than 50 percent of the average level of bona fide services in the 36 months immediately preceding the
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termination. For all purposes hereunder, the definition of Separation from Service shall be interpreted consistent with Treasury Regulation Section
1.409A-1(h)(ii).
(d) Notwithstanding the foregoing, if Executive is a “specified employee” (i.e., a “key
employee” of a publicly traded company within the meaning of Section 409A of the Code and the final regulations issued thereunder) and any payment under this Agreement is triggered due to Executive’s Separation from Service, then solely to the
extent necessary to avoid penalties under Section 409A of the Code, no payment shall be made during the first six (6) months following Executive’s Separation from Service. Rather, any payment which would otherwise be paid to Executive during such
period shall be accumulated and paid to Executive in a lump sum on the first day of the seventh month following such Separation from Service. All subsequent payments shall be paid in the manner specified in this Agreement.
(e) If the Bank cannot provide Executive or Executive’s dependents any continued health insurance or other welfare benefits as required by this Agreement because Executive is no
longer an employee, applicable rules and regulations prohibit such benefits or the payment of such benefits in the manner contemplated, or it would subject the Bank to penalties, then the Bank shall pay Executive or Executive’s beneficiary or
estate in the event of death a cash lump sum payment reasonably estimated to be equal to the value of such benefits or the value of the remaining benefits at the time of such determination. Such cash payment shall be made in a lump sum within 30
days after the later of Executive’s date of termination or the effective date of the rules or regulations prohibiting such benefits or subjecting the Bank to penalties.
(f) To the extent not specifically provided in this Agreement, any compensation or reimbursements payable to Executive shall be paid or provided no later than two and one-half (2.5)
months after the calendar year in which such compensation is no longer subject to a substantial risk of forfeiture within the meaning of Treasury Regulation Section 1.409A-1(d).
(g) Notwithstanding anything in this Agreement to the contrary, Executive understands that nothing contained in this Agreement limits Executive’s ability to file a charge or
complaint with the Securities and Exchange Commission or any other federal, state or local governmental agency or commission (“Government Agencies”) about a
possible securities law violation without approval of the Bank (or any affiliate). Executive further understands that this Agreement does not limit Executive’s ability to communicate with any Government Agency or otherwise participate in any
investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Bank (or any affiliate) related to the possible securities law violation. This Agreement does not
limit Executive’s right to receive any resulting monetary award for information provided to any Government Agency.
12. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any provision, is held invalid, such invalidity shall not affect any
other provision of this Agreement or any part of such provision not held so invalid, and each such other provision and part thereof shall to the full extent consistent with law continue in full force and effect.
13. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New York, but only to the extent not superseded by federal law.
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14. ARBITRATION.
In the event of any controversy, dispute or claim arising out of or related to this Agreement or Executive’s employment by the Employer,
the parties shall negotiate in good faith in an attempt to reach a mutually acceptable settlement of such dispute. If negotiations in good faith do not result in a settlement of any such controversy, dispute or claim, it shall, except as otherwise
provided for herein be finally settled by expedited arbitration conducted by a single arbitrator selected as hereinafter provided (the “Arbitrator”) in accordance with the National Rules of the American Arbitration Association (“National Rules”),
subject to the following (the parties hereby agreeing that, notwithstanding the provisions of Rule 1 of the National Rules, in the event that there is a conflict between the provisions of the National Rules and the provisions of this Agreement, the
provisions of this Agreement shall control):
(a) The Arbitrator shall be determined from a list of names of five impartial arbitrators each of whom shall be an attorney experienced in
arbitration matters concerning executive employment disputes, supplied by the AAA chosen by Executive and the Employer each in turn striking a name from the list until one name remains (with the Employer being the first to strike a name).
(b) The expenses of the arbitration shall be borne by the Employer; and the Employer shall bear its own legal fees and expenses and pay, at least
monthly, all of Executive’s legal fees and expenses incurred in connection with such arbitration, except that Executive shall have to reimburse the Employer for his legal fees and expenses if the arbitrator finds that Executive brought an action in
bad faith.
(c) The Arbitrator shall determine whether and to what extent any party shall be entitled to damages under this Agreement; provided that no party
shall be entitled to punitive or consequential damages (including, in the case of the Employer, any claim for alleged lost profits or other damages that would have been avoided had Executive remained an employee), and each party waives all such
rights, if any.
(d) The Arbitrator shall not have the power to add to nor modify any of the terms or conditions of this Agreement. The Arbitrator’s decision
shall not go beyond what is necessary for the interpretation and application of the provision(s) of this Agreement in respect of the issue before the Arbitrator. The Arbitrator shall not substitute his or her judgment for that of the parties in the
exercise of rights granted or retained by this Agreement. The Arbitrator’s award or other permitted remedy, if any, and the decision shall be based upon the issue as drafted and submitted by the respective parties and the relevant and competent
evidence adduced at the hearing.
(e) The Arbitrator shall have the authority to award any remedy or relief (including provisional remedies and relief) that a court of competent jurisdiction could order or grant.
The Arbitrator’s written decision shall be rendered within sixty (60) days of the closing of the hearing. The decision reached by the Arbitrator shall be final and binding upon the parties as to the matter in dispute. To the extent that the relief
or remedy granted by the Arbitrator is relief or remedy on which a court could enter judgment, a judgment upon the award rendered by the Arbitrator shall be entered in any court having jurisdiction thereof (unless in the case of an award of
damages, the full amount of the award is paid within ten (10) days of its determination by the Arbitrator). Otherwise, the award shall be binding on the parties in
connection with their continuing performances of this Agreement and, in any subsequent arbitral or judicial proceedings between the parties.
(f) The arbitration shall take place in Orange County, New York.
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(g) The arbitration and all filing, testimony, documents and information relating to or presented during the arbitration proceeding shall be
disclosed exclusively for the purpose of facilitating the arbitration process and in any court proceeding relating to the arbitration, and for no other purpose, and shall be deemed to be information subject to the confidentiality provisions of this
Agreement.
(h) The parties shall continue performing their respective obligations under this Agreement notwithstanding the existence of a dispute while the
dispute is being resolved unless and until such obligations are terminated or expire in accordance with the provisions hereof.
(i) The parties may obtain a pre-hearing exchange of information including depositions, interrogatories, production of documents, exchange of
summaries of testimony or exchange of statements of position, and the Arbitrator shall limit such disclosure to avoid unnecessary burden to the parties and shall schedule promptly all discovery and other procedural steps and otherwise assume case
management initiative and control to effect an efficient and expeditious resolution of the dispute. At any oral hearing of evidence in connection with an arbitration proceeding, each party and its counsel shall have the right to examine its witness
and to cross-examine the witnesses of the other party. No testimony of any witness, or any evidence, shall be introduced by affidavit, except as the parties otherwise agree in writing.
(j) Notwithstanding the dispute resolution procedures contained in this Section 14, either party may apply to any court sitting in Orange County,
New York (i) to enforce this agreement to arbitrate, (ii) to seek provisional injunctive relief so as to maintain the status quo until the arbitration award is rendered or the dispute is otherwise resolved, (iii) to confirm any arbitration award,
or (iv) to challenge or vacate any final judgment, award or decision of the Arbitrator that does not comport with the express provisions of this Section 14.
15. INDEMNIFICATION.
The Bank shall provide Executive (including Executive’s heirs, executors and administrators) with coverage under a standard directors’
and officers’ liability insurance policy at its expense, and shall indemnify Executive (and Executive’s heirs, executors and administrators) in accordance with the charter and bylaws of the Bank and to the fullest extent permitted under applicable
law against all expenses and liabilities (including attorneys’ fees) reasonably incurred by Executive in connection with or arising out of any action, suit or proceeding in which he may be involved by reason of Executive having been a director or
officer of the Bank or any subsidiary or affiliate of the Bank.
16. NOTICE.
For the purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below:
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To the Bank:
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Orange Bank &Trust Company
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212 Xxxxxx Xxxxxx
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Middletown, NY 10940
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Attention: Chief Executive Officer
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To Executive:
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Most recent address on file with the Bank
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17.
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CONFIDENTIALITY.
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(a) Executive recognizes and acknowledges that the knowledge of the business activities, plans for business activities, and all other proprietary information of the Bank and the
Company as it may exist from time to time (collectively referred to herein as “Confidential Information”), are valuable, special and unique assets of the business of the Bank and the Company. Executive will not, during or after the term of
Executive’s employment, disclose any knowledge of the past, present, planned or considered Confidential Information to any person, firm, corporation, or other entity for any reason or purpose whatsoever unless expressly authorized by the Board or
required by law. Notwithstanding the foregoing, Executive may disclose any knowledge of banking, financial and/or economic principles, concepts or ideas which are not solely and exclusively derived from the business plans and activities of the Bank
or the Company. Further, Executive may disclose information regarding the business activities of the Bank or the Company to any bank regulator having regulatory jurisdiction over the activities of the Bank or the Company pursuant to a formal
regulatory request and may disclose information that generally becomes known to and available for use by the public, if not disclosed as a result of Executive’s wrongful act or omission. Further, pursuant to the Defend Trade Secrets Act of 2016,
Executive understands that:
(i) Executive may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is
made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law; or is made in a complaint or other
document that is filed under seal in a lawsuit or other proceeding; and
(ii) If Executive files a lawsuit for retaliation by employer for reporting a suspected violation of law, Executive may disclose his employer’s trade
secrets to Executive’s attorney and use the trade secret information in the court proceeding if Executive files each document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
(b) In the event of a breach or threatened breach by Executive of the provisions of this Section 17, the Bank and the Company will be entitled to an injunction restraining
Executive from disclosing, in whole or in part, the knowledge of the past, present, planned or considered business activities of the Bank and the Company or any other similar proprietary information, or from rendering any services to any person,
firm, corporation, or other entity to whom such knowledge, in whole or in part, has been disclosed or is threatened to be disclosed. Nothing herein will be construed as prohibiting the Bank or the Company from pursuing any other remedies available
to the Bank and the Company for such breach or threatened breach, including the recovery of damages from Executive.
[Signature Page Follows)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates below.
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ORANGE BANK & TRUST COMPANY
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December 22, 2023
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By: /s/ Xxxxxxx
X. Xxxxxxxxxx
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Date
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Name: Xxxxxxx X. Xxxxxxxxxx
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| Title: President and Chief Executive Officer | |
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EXECUTIVE
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December 22, 2023
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/s/ Xxxxxx Xxxx
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Date
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Xxxxxx Xxxx
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