SNNF 8-K
Seneca Bancorp, Inc. (SNNF)
8-K
2026-06-04
For: 2026-05-29
View Original
Added on
June 05, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 29, 2026
(Exact Name of Registrant as Specified in Charter)
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(State or Other Jurisdiction)
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(Commission File No.)
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(I.R.S. Employer
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of Incorporation)
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Identification No.)
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrant's telephone number, including area code: (315 ) 638-0233
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading
Symbol(s)
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Name of each exchange on which registered
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None
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None
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or
Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
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On May 29, 2026, Vincent Fazio notified Seneca Bancorp, Inc. (the “Company”) and its bank subsidiary, Seneca Savings Bank, National
Association (the “Bank”), that he intends to retire as the Company’s and the Bank’s Executive Vice President and Chief Financial Officer effective at the close of business on June 30, 2026. Following his retirement, Mr. Fazio will continue to serve
as a member of the boards of directors of the Company and the Bank and as a consultant to the Bank for a period of 12 months to assist with the transition of his successor.
In connection with Mr. Fazio’s retirement, he and the Bank have entered into a Retirement and Consulting Agreement (the “Consulting
Agreement”). The Consulting Agreement provides that Mr. Fazio will retire as Executive Vice President and Chief Financial Officer of the Company and the Bank effective June 30, 2026 (the “Retirement Date”), and effective as of the Retirement Date,
Mr. Fazio’s employment agreement with the Company and the Bank will terminate.
Pursuant to the Consulting Agreement, Mr. Fazio will render consulting services to the Bank beginning on July 1, 2026, and continuing
through June 30, 2027. He will be reasonably available to the Bank for up to 10 hours per month to consult on Bank and Company matters. He will not be an employee of the Company or the Bank following June 30, 2026, but rather, an independent
contractor. In exchange for the consulting services and his continued availability through June 30, 2027, Mr. Fazio will be paid a monthly consulting fee of $1,000 per month, provided, that in any month during which Mr. Fazio provides more than 10
hours of consulting services, he will receive an additional $100 per each additional hour above 10 hours during such month.
Further, in connection with Mr. Fazio’s retirement, the Bank amended the supplemental executive retirement agreement for Mr. Fazio to
increase the annual early retirement benefit to $15,000 effective upon the Retirement Date (the “SERP Amendment”) in recognition of Mr. Fazio’s substantial contributions to the Company and the Bank.
On May 29, 2026, the Company and the Bank appointed Angela Krezmer (age 40) to succeed Mr. Fazio as Executive Vice President and Chief
Financial Officer effective July 1, 2026. Before joining the Bank, Ms. Krezmer was employed by Generations Bank and Generations Bancorp NY, Inc., Seneca Falls, New York, serving as President, Chief Executive Officer, and Chief Financial Officer
through the acquisition of substantially all its assets by ESL Federal Credit Union and the related dissolution of the entities. She was initially appointed as Chief Financial Officer of Generations Bank and Generations Bancorp NY, Inc., in June
2021, and subsequently appointed President and Chief Executive Officer in November 2023. From June 2020 until June 2021, Ms. Krezmer served as Chief Financial Officer of Prosper Bank, Coatesville, Pennsylvania, and prior to that, Ms. Krezmer served
for more than a decade at Fairport Savings Bank, Fairport, New York where she held various positions including Chief Financial Officer. There are no family relationships between Ms. Krezmer and any director or executive officer of the Company or
the Bank. Ms. Krezmer is not a party to any transaction
with the Company or the Bank that would require disclosure under Item 404(a) of Securities and Exchange Commission Regulation S-K.
In addition, on May 29, 2026, the Company and the Bank appointed Angelo Testani to the position of Executive Vice President and Chief
Banking Officer. Prior to this appointment, Mr. Testani has served as Senior Vice President of Commercial Lending of the Company and the Bank since 2016.
In connection with the appointments of Ms. Krezmer as Executive Vice President and Chief Financial Officer and of Mr. Testani as Executive
Vice President and Chief Banking Officer, the Bank has entered into an individual employment agreement (the “Employment Agreement”) with each executive. The Employment Agreements are effective as of July 1, 2026 for Ms. Krezmer and May 29, 2026 for
Mr. Testani. Each Employment Agreement has an initial term through December 31, 2028. Beginning on January 1, 2027 and continuing on each January thereafter (each a “renewal date”), the term of the Employment Agreement will automatically extend for
an additional year unless the Bank or the executive provides notice to the other at least 30 days before the renewal date. If a change in control occurs during the term of the Employment Agreement, the term will automatically renew so that it
expires no sooner than three years from the effective date of the change in control.
Each Employment Agreement provides that the executive will receive an annual base salary of $220,000 for Ms. Krezmer and $201,375 for Mr.
Testani. The Bank’s board of directors may increase, but not decrease, the base salary at any time. In addition to receiving a base salary, each executive will be eligible to participate in the bonus program and benefit plans made available to
senior management employees.
If either the executive voluntarily terminates employment without “good reason” or the Bank terminates the executive’s employment for
“cause” (as such terms are defined in the Employment Agreements), the executive will be entitled to receive the executive’s earned but unpaid salary, unpaid expense reimbursements, accrued but unused paid time off, and vested benefits under any
employee benefit plan of the Bank (the “Accrued Obligations”).
If the executive’s employment involuntarily terminates for reasons other than “cause,” disability or death, or if the executive resigns for
“good reason,” in either event other than in connection with a change in control, the executive will receive a severance payment, paid in a lump sum, equal to the Accrued
Obligations plus the base salary the executive would have received during the greater of 12 months or the remaining term of the Employment Agreement. In addition, if the executive timely elects continued medical insurance coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Bank will reimburse the monthly COBRA premium payments for up to 18 months. As a condition to receive these payments and benefits, the executive must execute, and
not revoke, a release of claims in favor of the Bank and its affiliates.
If the executive’s employment involuntarily terminates for reasons other than “cause,” disability or death, or if the executive resigns for
“good reason,” on or following a “change in control” (as such term is defined in the Employment Agreements), the executive will receive a
severance payment, paid in a lump sum, equal to the Accrued Obligations plus three times the sum of the executive’s base salary and highest annual cash bonus paid to or earned by the executive during the calendar year of the change in control or either of the two calendar years before the change in control. In addition,
the Bank will pay a lump sum cash payment equal to the cost of the monthly premiums for COBRA coverage to maintain the executive’s similar level of coverage immediately prior to the executive’s termination multiplied by 36.
Should the executive become disabled during the term of the Employment Agreement, the Bank may terminate the executive’s employment, and
the executive will receive the Accrued Obligations plus disability benefits, if any, provided under a long-term disability plan sponsored by the Bank. If the executive dies while employed by the Bank, the executive’s beneficiaries will receive the
Accrued Obligations plus the executive’s base salary for one year following the executive’s death, and, provided that the executive’s dependents timely elect continued coverage under COBRA, the Bank will provide (or reimburse) the executive’s
dependents for the amount of the monthly COBRA premiums to maintain substantially similar coverage in effect immediately prior to the executive’s death for a period of one year following the executive’s death.
Upon termination of employment (other than following a change in control), the executive must adhere to one-year non-competition and
non-solicitation restrictions set forth in the Employment Agreement.
On May 29, 2026, the Bank also entered into an amended and
restated employment agreement with Joseph Vitale, President and Chief Executive Officer of the Company and the Bank, which replaces his prior agreement. The amended and restated employment agreement provides for a new term commencing
effective as of May 29, 2026, and continuing through December 31, 2028. Beginning on January 1, 2027, and continuing on each January 1 thereafter (each a “renewal date”), the term will automatically extend for an additional year unless the Bank or
the executive provides notice to the other at least 30 days before the renewal date. No other material changes were made that substantially differ from the prior employment agreement.
The foregoing descriptions of the Consulting Agreement, the SERP Amendment, the Employment Agreements and the amended and restated
employment agreement with Mr. Vitale do not purport to be complete and are qualified in their entirety by the full text of the respective documents, copies of which are attached to this Current Report on Form 8-K as Exhibits 10.1, 10.2, 10.3, 10.4
and 10.5 and are incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. Description
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| 10.2 |
| 10.3 |
| 10.4 |
| 10.5 |
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Cover Page Interactive Data File (Embedded within Inline XBRL document)
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, hereunto duly authorized.
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SENECA BANCORP, INC.
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DATE: June 4, 2026
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By:
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/s/ Joseph G. Vitale |
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Joseph G. Vitale
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President and Chief Executive Officer
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EXHIBIT 10.1
RETIREMENT AND CONSULTING AGREEMENT
THIS RETIREMENT AND
CONSULTING AGREEMENT, dated as of May 29, 2026 (this “Agreement”),
is made and entered into by and between Seneca Savings Bank, National Association (the “Bank”), the wholly owned subsidiary of the Seneca Bancorp, Inc. (the “Company”), and Vincent J. Fazio (“Executive”).
WHEREAS,
Executive is employed by the Company and the Bank as Executive Vice President and Chief Financial Officer; and
WHEREAS, Executive has notified the Company and the Bank of his intent to voluntarily retire from employment with the Company and the Bank, effective as of the
Retirement Date (as defined below).
NOW, THEREFORE,
the parties hereby acknowledge the following in connection with Executive’s retirement:
Section 1. Retirement.
Effective as of June 30, 2026 (the “Retirement Date”), Executive hereby retires as Executive Vice President and Chief Financial Officer of the Company and
the Bank, and, except as otherwise agreed between the parties, from all other positions, including as an officer, trustee or committee member, with any subsidiary or affiliate of either the Company or the Bank. As of the Retirement Date, Executive
hereby relinquishes any power of attorney, signing authority, trust authorization or bank account signatory authorization that Executive may hold on behalf of the Company, the Bank or their affiliates.
Section 2. Employment Agreement. At the Retirement Date, Executive
acknowledges that the Employment Agreement entered into with the Bank, dated as of April 6, 2017, shall terminate and have no further force or effect.
Section 3. Consulting.
(a) Consulting Period. Executive shall render the
Services (as defined below) for the period beginning the day immediately following the Retirement Date and ending on the one year anniversary of the Retirement Date, unless earlier terminated in accordance with Section 3(e) (the “Consulting Period”).
(b) Services. During the Consulting Period,
Executive shall provide general advisory services as reasonably requested by the Chief Executive Officer or Chief Financial Officer, including assisting the Company and the Bank with the transitioning of Executive’s duties and responsibilities to
Executive’s successor, assisting with managing the Bank’s investment portfolio and balance sheet, and related financials (the “Services”). During the
Consulting Period, Executive shall provide the Services at such times and in such locations as mutually agreed between the parties, provided, however, that Executive shall be permitted to perform the Services remotely. The Bank and Executive
expect that Executive to provide Services for about ten (10) hours per month, provided that in no event shall Executive be required to render more than twenty (20) hours of service in any single calendar month during the Consulting Period.
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(c) Remuneration.
(i) Consulting Fees. In consideration for agreeing to provide the Services, Executive
shall receive a monthly fee of $1,000, which shall be paid monthly during the Consulting Period, provided that if Executive is required to provide Services exceeding ten (10) hours in any calendar month, Executive shall invoice the Bank, within ten
(10) days following the end of the month, at a rate of $100 per each additional hour of Service, which shall be paid by the Bank no later than the next monthly payment to occur, subject to Executive’s continued compliance with this Agreement, (the
“Consulting Fees”).
(ii) Expenses. The Bank shall reimburse Executive pursuant to the Bank’s reimbursement
policies as in effect from time to time for senior executives for reasonable business expenses incurred by Executive in connection with the performance of the Services.
(iii) No Benefits. Except as specifically provided in this Agreement, Executive shall be
entitled to no compensation or benefits from the Company, the Bank or their affiliates with respect to the Services, including, without limitation, any bonus or equity awards or other long-term incentive awards, and shall not be credited with any
service, age, or other credit for purposes of eligibility, vesting, or benefit accrual under any employee benefit plan of the Company, the Bank or their affiliates.
(d) Status as a Non-Employee. The Company, the
Bank and Executive acknowledge and agree that, in performing the Services pursuant to this Agreement, Executive shall be acting and shall act at all times as an independent contractor only and not as an employee, agent, partner, or joint venturer
of the Company, the Bank or their affiliates. Executive acknowledges that he is and shall be solely responsible for the payment of all federal, state, and local taxes that are required by applicable laws or regulations to be paid with respect to
his Consulting Fees.
(e) Termination of Consulting Period.
(i) Termination. Either the Bank or Executive may terminate the Consulting Period at any
time and for any reason (or no reason) by providing the other party with thirty (30) days’ advance written notice of such termination.
(ii) Payments upon Termination. Upon termination of the Consulting Period for any reason,
the Bank shall pay to Executive any unpaid Consulting Fees for Services rendered through the date of termination (which such fees shall be pro-rated to the extent such termination is effective at a date other than the last day of a month). Any
amounts payable upon termination shall be paid within 10 business days following the date of termination. For purposes of this Agreement, “Cause” shall mean
a material breach by Executive of this Agreement, which the breach remains uncured after notice from the Company or the Bank and a reasonable opportunity to cure. Upon the death of Executive, this Agreement shall terminate and no further payments
shall be made to Executive except for the monthly installment for the month in which Executive’s death occurred.
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Section 4. General Provisions.
(a) Non-Assignability. This Agreement may not be assigned by Executive.
(b) Binding on Successors and Assigns. The terms
of this Agreement shall be binding upon the parties hereto and their respective heirs, personal representatives, successors and permitted assigns, including any successor employer to the Company and/or the Bank in the event of a change in control.
(c) Entire Agreement. This Agreement and any other
benefit plan or agreement referenced in this Agreement represent the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior understandings, written or oral. The terms of this Agreement may be
changed, modified or discharged only by an instrument in writing signed by the parties hereto.
(d) Governing Law. This Agreement shall in all
respects be interpreted, enforced, and governed under the laws of the State of New York without regard to conflict of laws provisions.
(e) Notices. 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:
If to the Company and/or the Bank:
Seneca Bancorp, Inc.
35 Oswego Street
Baldwinsville, NY 13027
Attn: President and Chief Executive Officer
If
to Executive: At the most recent address listed in the Bank’s records.
(f) Severability. If any provision of this Agreement is determined to be void or unenforceable, then the remaining provisions of this Agreement will remain in full force and effect.
(g) Counterparts. This Agreement may be executed
in one or more counterparts, each of which counterpart, when so executed and delivered, will be deemed an original and all of which counterparts, taken together, will constitute but one and the same agreement.
(h) Tax Withholding. The Company or the Bank
shall withhold from the amounts payable under this Agreement such federal, state and/or local taxes as shall be required to be withheld pursuant to any applicable law or regulation.
(i) Mutual Non-Disparagement. Each party agrees,
without limitation as to time, to refrain from making any statement which would tend to disparage or injure the reputation of the other party.
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(j) Arbitration. Any dispute or controversy
arising under or in connection with this Agreement shall be settled exclusively by binding arbitration, as an alternative to civil litigation and without any trial by jury to resolve such claims, conducted by a single arbitrator mutually acceptable
to the Bank and Executive, sitting in a location selected by the Bank within 50 miles from the main office of the Bank, in accordance with the
rules of the American Arbitration Association’s National Rules for the Resolution of Employment Disputes then in effect. Judgment may be entered on the arbitrator’s award in any court having jurisdiction. The cost of the arbitrator shall be paid
by the Company or the Bank; all other costs of arbitration shall be borne by the respective parties.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date first written above.
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SENECA SAVINGS BANK, NATIONAL ASSOCIATION
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By: /s/ Joseph Vitale
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Name: Joseph Vitale
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Title: President and Chief Executive Officer
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EXECUTIVE
/s/ Vincent J. Fazio
Vincent J. Fazio
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EXHIBIT 10.2
SECOND AMENDMENT TO THE
SENECA SAVINGS BANK, NATIONAL ASSOCIATION
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
FOR VINCENT FAZIO
This Second Amendment (the “Amendment”) is adopted this 29
day of May 2026, by Seneca Savings Bank, National Association (the “Bank”) for the benefit of Vincent Fazio (the “Executive”).
WHEREAS, the Bank and the
Executive have previously entered into the Supplemental Executive Retirement Agreement made effective on June 20, 2016, as amended on June 9, 2025 (the “Agreement”), which is an unfunded deferred compensation arrangement intended to encourage the
Executive to remain an employee of the Bank;
WHEREAS, the Agreement is
designed to provide supplemental retirement benefits to the Executive upon Executive’s retirement, or other events as provided in the Agreement, which benefits are to be payable out of the Bank’s general assets;
WHEREAS, the Executive intends to
retire from his role as Executive Vice President and Chief Financial Officer of the Bank effective on June 30, 2026 (the “Retirement Date”); and
WHEREAS, the Bank desires to
amend the Agreement to modify the amount of the Early Retirement Benefit (as defined in the Agreement) to reward and acknowledge Executive’s substantial contributions to the Bank.
NOW, THEREFORE, for good and
valuable consideration, the adequacy of which is acknowledged by the parties hereto, the Agreement is hereby amended as follows, effective as of the Retirement Date, provided that Executive does not terminate Executive’s employment prior to the
Retirement Date:
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The first paragraph of Section 2 of the Agreement is hereby deleted in its entirety and replaced with the following:
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“Upon the Executive’s Separation from Service on or after attaining age 61 (the “Early Retirement Age”) but prior to attaining the
Normal Retirement Age for any reason other than as a result of death or Disability (which is addressed in Section 3), Cause (which is addressed in this Section 2) or in connection with a Change in Control (which is addressed in Section 7), the Bank
shall pay the Executive an annual benefit from the Annuity Contract through the Rider (the “Early Retirement Benefit”) which is projected to equal $15,000 as of June 30, 2026.”
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The first sentence of the third paragraph of Section 2 of the Agreement is hereby deleted in its entirety and replaced with
the following:
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“In the event the Executive is still living at the end of this fifteen (15) year period, the Bank shall pay the Executive from the
Annuity Contract through the Rider an additional annual benefit equal to the Early Retirement Benefit.”
The Agreement is otherwise ratified and confirmed in all respects.
IN WITNESS WHEREOF, a duly authorized officer of the Bank has signed this Amendment as of the date first written above.
SENECA SAVINGS BANK, NATIONAL ASSOCIATION
By: /s/ Joseph Vitale
Its: President and Chief Executive Officer
Agreed, acknowledged and accepted by:
/s/ Vincent Fazio
Vincent Fazio
EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement (the “Agreement”)
is made and entered into, effective as of July 1, 2026 (the “Effective Date”),
by and between Seneca Savings Bank, National Association (the “Bank”) and Angela Krezmer (“Executive”). Any reference to the “Company” means Seneca Bancorp, Inc., the stock holding company of the Bank, 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 and Chief Financial Officer of the Bank and the
Company (the “Executive Position”), and will perform the duties and will have all powers associated with such position as set forth in any job description
provided to Executive by the Bank, and as may be set forth in the bylaws 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 initial term of this Agreement and the period of Executive’s employment hereunder shall begin as of the Effective Date and shall continue through December 31, 2028. Commencing on
January 1, 2027 and continuing on each January 1st thereafter (each, a “Renewal Date”), this Agreement shall automatically extend for an
additional year such that the remaining Term shall be three (3) years, unless either the Bank or the Executive by written notice of non-renewal to the other given at least 30 days prior to such Renewal Date notifies the other of its intent not to
extend the Term. In the event that notice is given by either the Bank or Executive, this Agreement will terminate as of the last day of the then current Term. For purposes of this Agreement, the “Term” shall include the initial Term and any
extensions thereto.
(b) Change in Control. Notwithstanding the foregoing, in the event the
Bank or the Company has entered into an agreement to effect a transaction that would be considered a Change in Control as defined under Section 5 hereof, the term of this Agreement shall be extended automatically so that it is scheduled to expire
no less than three (3) years beyond the
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effective date of the Change in Control, subject to extensions as set forth above.
(c) Membership on Other Boards or Organizations. During the period of
Executive’s employment hereunder, except for periods of absence occasioned by illness, reasonable vacation periods, and reasonable leaves of absence, Executive will devote all of Executive’s business time, attention, skill and efforts to the
faithful performance of Executive’s duties under this Agreement, including activities and duties related to the Executive Position. Notwithstanding the preceding sentence, subject to the approval of the 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 Executive’s 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.
(d) 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 of this Agreement.
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3.
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COMPENSATION, BENEFITS AND REIMBURSEMENT.
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(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 salary of $220,000 per year (“Base Salary”). Such Base Salary will be payable in accordance with the customary payroll practices of the Bank. During the term of this Agreement, the Board may increase, but not decrease (other than a decrease which is applicable to all senior officers of
the Bank and in a percentage not in excess of the percentage decrease for other senior officers), Executive’s Base Salary as the Board deems appropriate. Any change in Base Salary will become the “Base Salary” for purposes of this Agreement.
(b) Bonus. Executive shall be eligible to participate in any bonus
plan or arrangement of the Bank or the Company in which senior management is eligible to participate. Nothing paid to Executive under any such plan or arrangement will be deemed to be in lieu of the other compensation to which Executive is
entitled under this Agreement.
(c) Benefit Plans. Executive will be entitled to participate in all
employee benefit plans, arrangements and perquisites offered to employees and officers of the Bank, on the same terms and conditions as such plans are available to other employees and officers of the Bank. Without limiting the generality of the
foregoing provisions of this Section 3(c), Executive also will be entitled to participate in any employee benefit plans including but not limited to retirement plans, pension plans, profit-sharing plans, health-and-accident plans, or any other
employee benefit plan or arrangement made available by the Bank in the future to management employees, subject to and on a basis consistent with the terms, conditions and overall administration of such plans and arrangements as applicable to other
management employees.
(d) Vacation. Executive will be entitled to paid vacation time each
year during the term of this Agreement measured on a calendar year basis, in accordance with the Bank’s customary practices, as well as sick leave, holidays and other paid absences in accordance with
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the Bank’s policies and procedures for officers. 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.
(e) Expense Reimbursements. The Bank will reimburse Executive for all
reasonable travel, entertainment and other reasonable expenses incurred by Executive during the course of performing Executive’s obligations under this Agreement, including, without limitation, fees for memberships in such organizations as
Executive and the Board mutually agree are necessary and appropriate in connection with the performance of Executive’s duties under this Agreement, upon substantiation of such expenses in accordance with applicable policies and procedures of the
Bank. All reimbursements pursuant to this Section 3(e) shall be paid promptly by the Bank and in any event no later than 30 days following the date on which the expense was incurred.
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4.
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TERMINATION AND TERMINATION PAY.
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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. Executive’s employment under this Agreement will terminate
upon Executive’s death during the term of this Agreement, in which event Executive’s estate or beneficiary shall be paid Executive’s Base Salary at the rate in effect at the time of Executive’s death for a period of one (1) year following
Executive’s death (payable in accordance with the regular payroll practices of the Bank). In addition, for one (1) year following Executive’s death, provided that Executive’s dependents timely elect continued medical and dental coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Bank will provide Executive’s dependents with the amount of the monthly
COBRA premiums (or reimburse Executive’s dependents for such COBRA premiums) for substantially comparable coverage to the coverage maintained by the Bank for Executive and Executive’s family immediately prior to Executive’s death.
(b) Disability. This Agreement shall terminate in the event of
Executive’s “Disability” as determined by the Board in its sole discretion, in which event Executive shall be entitled to receive the compensation and vested benefits due to Executive as of the date of Executive’s Disability, and Executive shall
have no right to receive any other compensation or benefits under this Agreement. “Disability” shall mean Executive’s permanent and totally physical or
mental impairment that restricts Executive from performing all the essential functions of normal employment.
(c) Termination for Cause. The Board may immediately terminate
Executive’s employment at any time for “Cause.” Executive shall have no right to receive compensation or other benefits for any period after termination for Cause, except for benefits that have vested prior to the date of termination for Cause.
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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material act of dishonesty or fraud in performing Executive’s duties on behalf of the Bank;
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(ii)
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willful misconduct that in the judgment of the Board will likely cause economic damage to the Bank or injury to the business reputation of the
Bank;
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(iii)
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incompetence (in determining incompetence, the acts or omissions shall be measured against standards generally prevailing in the banking industry);
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(iv)
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breach of fiduciary duty involving personal profit;
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(v)
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intentional failure to perform stated duties under this Agreement after written notice thereof from the Board;
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(vi)
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willful violation of any law, rule or regulation (other than traffic violations or similar offenses which results only in a fine or other
non-custodial penalty) that reflect adversely on the reputation of the Bank, any felony conviction, any violation of law involving moral turpitude, or any violation of a final cease-and-desist order; or any violation of the policies and
procedures of the Bank as outlined in the Bank’s employee handbook, which would result in termination of the Bank employees, as from time to time amended and incorporated herein by reference; or
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(d) Voluntary Termination by Executive. Executive may voluntarily
terminate employment during the term of this Agreement 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 Executive’s voluntary termination of employment, except for the compensation or benefits that have already been earned or vested. 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 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 amount of Base Salary that would have been earned by Executive had Executive
remained employed with the Bank for the greater of: (A) 12 months; or (B) the remaining term of this Agreement (the “Benefit Period”). Such payment
shall be made to Executive within 30 days following Executive’s date of termination and will be subject to applicable withholding taxes.
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(iii)
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In addition, provided that Executive timely elects continued COBRA coverage, the Bank will provide to Executive cash payments equal to the
monthly COBRA premiums (or reimburse Executive for such COBRA premiums) for coverage substantially comparable (and on substantially the same terms and conditions) to the coverage maintained by the Bank for Executive immediately prior to
Executive’s termination under the same cost-sharing arrangements that apply for active employees of the Bank as of Executive’s date of termination. Such payments (or reimbursements) for continued coverage shall cease upon the earlier of:
(A) the completion of the Benefit Period; (B) 18 months; or (C) the date on which Executive becomes a full-time employee of another employer, provided Executive is entitled to benefits that are substantially similar to the health and
welfare benefits provided by the Bank.
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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 in Executive’s Base Salary;
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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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a relocation of Executive’s principal place of employment by more than 50 miles from the Bank’s main office location as of the date of this
Agreement; or
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(D)
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a material breach of this Agreement by the Bank.
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(v)
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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
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5
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.
(f) Effect on Status as a Director and Other Positions. In the event
of Executive’s termination of employment under this Agreement for any reason, such termination shall also constitute Executive’s resignation as a director, employee, trustee, consultant and agent of the Bank or the Company, or any subsidiary or
affiliate thereof, except as otherwise agreed between Executive and the Bank and/or the Company.
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5.
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CHANGE IN CONTROL.
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(a) Change in Control Defined. For purposes of this Agreement, the
term “Change in Control” shall mean the occurrence of any of the following events:
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(i)
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Merger: The Bank or the Company merges into or
consolidates with another entity whereby the Bank or the Company is not the surviving entity, or the Bank or the Company merges another bank or corporation into the Bank or the Company, and as a result, less than a majority of the combined
voting power of the resulting corporation immediately after the merger or consolidation is held by persons who were stockholders of the Company or the Bank immediately before the merger or consolidation;
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(ii)
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Acquisition of Significant Share Ownership: There is
filed, or is required to be filed, a report on Schedule 13D or another form or schedule (other than Schedule 13G) required under Sections 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, if the schedule discloses that the
filing person or persons acting in concert has or have become the beneficial owner of 25% or more of a class of the Company’s or the Bank’s voting securities; provided, however, this clause (ii) shall not apply to beneficial ownership of
the Company’s or the Bank’s voting shares held in a fiduciary capacity by an entity of which the Company directly or indirectly beneficially owns 50% or more of its outstanding voting securities;
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(iii)
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Change in Board Composition: During any period of two
(2) consecutive years, individuals who constitute the Company’s or the Bank’s Board of Directors at the beginning of the two-year period cease for any reason to constitute at least a majority of the Company’s or the Bank’s Board of
Directors; provided, however, that for purposes of this clause (iii), each director who is first elected to the board (or first nominated by the board
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6
for election by the stockholders) by a vote of at least two-thirds (2/3) of the directors who were directors at the beginning of the
two-year period or who is appointed to the Board as the result of a directive, supervisory agreement or order issued by the primary federal regulator of the Company or the Bank shall be deemed to have also been a director at the beginning of such
period; or
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(iv)
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Sale of Assets: The Company or the Bank sells to a
third party all or substantially all of its assets.
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Notwithstanding anything herein to the contrary, a transaction will not be deemed a Change in Control unless such transaction qualifies
as a “change in the ownership,” or “change in effective control,” or “change in the ownership of a substantial portion of the assets” of the corporation in accordance with Section 409A of the Code.
(b) Change in Control Benefits. Upon the termination of Executive’s
employment by the Bank (or any successor) Without Cause or by Executive With Good Reason on or after the effective time of a Change in Control, the Bank (or any successor) shall pay Executive, or in the event of Executive’s subsequent death,
Executive’s beneficiary or estate, as severance pay an amount equal to three (3) times the sum of Executive’s: (i) highest annual rate of Base Salary; and (ii) highest annual cash bonus paid to, or earned by, Executive during the calendar year of
the Change in Control or either of the two (2) calendar years immediately preceding the Change in Control. Such payments shall be made in a lump sum within 30 days following Executive’s date of termination, and will be subject to applicable
withholding taxes. In addition, the Bank will provide to Executive a lump sum cash payment equal to the monthly COBRA premiums for coverage substantially comparable to the coverage maintained by the Bank for Executive immediately prior to
Executive’s termination multiplied by 36. 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).
6. COVENANTS OF EXECUTIVE
(a) Non-Solicitation/Non-Compete. Executive hereby covenants and
agrees that, for a period of one (1) year following Executive’s termination of employment with the Bank, and except as provided in (iv),
Executive shall not, without the written consent of the Bank, either directly or indirectly:
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(i)
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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 and accept employment or become affiliated with, or provide services for compensation in any
capacity whatsoever to, any business whatsoever that competes with the business of the Bank, or any of their direct or indirect subsidiaries or affiliates, that has headquarters or offices within 25 miles of any location(s) in which the
Bank has business operations or has filed an application for regulatory approval to establish an office;
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7
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(ii)
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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, credit union, bank or bank holding company, insurance company or agency, any mortgage or
loan broker or any other entity that competes with the business of the Bank or any of their direct or indirect subsidiaries or affiliates, that: (A) has a headquarters within 25 miles of the Bank’s headquarters (the “Restricted Territory”), or (B) has one or more offices, but is not headquartered, within the Restricted Territory, but in the latter case, only if Executive would be
employed, conduct business or have other responsibilities or duties within the Restricted Territory; or
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(iii)
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solicit, provide any information, advice or recommendation or take any other action intended (or that a reasonable person acting in like
circumstances would expect) to have the effect of causing any customer of the Bank to terminate an existing business or commercial relationship with the Bank.
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(iv)
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The restrictions contained in this Section 6(a) shall not apply in the event of Executive’s termination of employment on or after the effective
time of a Change in Control.
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(b) Confidentiality. Executive recognizes and acknowledges that the
knowledge of the business activities, plans for business activities, and all other proprietary information of the Bank, as it may exist from time to time, are valuable, special and unique assets of the business of the Bank. Executive will not,
during or after the term of Executive’s employment, disclose any knowledge of the past, present, planned or considered business activities or any other similar proprietary information of the Bank 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. Further, Executive may disclose information regarding the business activities of the Bank to any bank regulator having regulatory jurisdiction over the activities
of the Bank pursuant to a formal regulatory request. In the event of a breach or threatened breach by Executive of the provisions of this Section, the Bank 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 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 from pursuing any other remedies available to the Bank for such breach or threatened breach, including the recovery
of damages from Executive.
(c) 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;
8
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.
(d) 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 experience and capabilities are such that Executive can obtain employment in a business engaged in other lines of business than the Bank, and that the
enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. 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 contains the entire understanding between the parties hereto and supersedes any prior employment agreement between the
Bank or any 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 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.
9
(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 Bank’s 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) If Executive is suspended from office and/or temporarily prohibited from participating in the conduct of the Bank’s affairs by a notice served under Section 8(e)(3) [12 U.S.C.
§1818(e)(3)] or 8(g)(1) [12 U.S.C. §1818(g)(1)] of the Federal Deposit Insurance Act (the “FDI Act”), the Bank’s obligations under this Agreement shall be suspended as of the date of service, unless stayed by appropriate proceedings. If the
charges in the notice are dismissed, the Bank may in its discretion: (i) pay Executive all or part of the compensation withheld while its contract obligations were suspended and (ii) reinstate (in whole or in part) any of its obligations which were
suspended.
(c) If Executive is removed and/or permanently prohibited from participating in the conduct of the Bank’s affairs by an order issued under Section 8(e)(4) [12 U.S.C. §1818(e)(4)] or
8(g)(1) [12 U.S.C. §1818(g)(1)] of the FDI Act, all obligations of the Bank under this Agreement shall terminate as of the effective date of the order, but vested rights of the contracting parties shall not be affected.
(d) If the Bank is in default as defined in Section 3(x)(1) [12 U.S.C. §1813(x)(1)] of the FDI Act, all obligations of the Bank under this Agreement shall terminate as of the date
of default, but this paragraph shall not affect any vested rights of the contracting parties.
(e) All obligations under this Agreement shall be terminated, except to the extent determined that continuation of this Agreement is necessary for the continued operation of the
Bank, (i) by the Comptroller of the Office of the Comptroller of the Currency or his or her designee, at the time the FDIC enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Section 13(c) [12
U.S.C. §1823(c)] of the FDI Act; or (ii) by the Comptroller or his or her designee at the time the Comptroller or his or her designee approves a supervisory merger to resolve problems related to operation of the Bank or when the Bank is determined
by the Comptroller to be in an unsafe or unsound condition. Any rights of the parties that have already vested, however, shall not be affected by such action.
10
(f) 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.
(g) 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 Section 409A of the Code. 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 termination. For all purposes hereunder, the definition of Separation from Service shall be interpreted consistent
with Treasury Regulation Section 1.409A-1(h)(ii). Notwithstanding the foregoing, this Section 11(g) shall not apply in the event of the Executive’s termination for Cause.
(h) 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.
(i) 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).
(j) 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.
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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.
14. ARBITRATION.
Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by binding arbitration, as an
alternative to civil litigation and without any trial by jury to resolve such claims, conducted by a single arbitrator mutually acceptable to the Bank and Executive, sitting in a location selected by the Bank within 50 miles from the main office of the Bank, in accordance with the rules of the American Arbitration Association’s National Rules for the Resolution of Employment Disputes then in
effect. Judgment may be entered on the arbitrator’s award in any court having jurisdiction. The cost of the arbitrator shall be paid by the Bank; all other costs of arbitration shall be borne by the respective parties, except as otherwise provided
in Section 14.
15. PAYMENT OF LEGAL FEES.
To the extent that such payment(s) may be made without triggering penalty under Section 409A of the Code, all reasonable legal fees paid
or incurred by Executive pursuant to any dispute relating to this Agreement shall be paid or reimbursed by the Bank provided that the dispute is resolved in Executive’s favor, and such reimbursement shall occur no later than 60 days after the end of
the year in which the dispute is settled or resolved in Executive’s favor.
16. 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 reasonably incurred by Executive in connection with or arising out of any action, suit or proceeding in which Executive may be involved by reason of Executive having been a director or officer of the Bank or
any subsidiary or affiliate of the Bank.
17. 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
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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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Seneca Savings Bank, National Association
35 Oswego St.
Baldwinsville, NY 13027
Attention: Chairman of the Board
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To Executive:
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Most recent address on file with the Bank
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[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date firstwritten above.
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SENECA SAVINGS BANK,
NATIONAL ASSOCIATION
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By: /s/ Joseph Vitale
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Name: Joseph Vitale
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Title: President and Chief Executive Officer
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EXECUTIVE
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| /s/ Angela Krezmer | |
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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement (the “Agreement”)
is made and entered into, effective as of May 29, 2026 (the “Effective Date”),
by and between Seneca Savings Bank, National Association (the “Bank”) and Angelo Testani (“Executive”). Any reference to the “Company” means Seneca Bancorp, Inc., the stock holding company of the Bank, 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 and Chief Banking Officer of the Bank and the Company (the “Executive Position”), and will perform the duties
and will have all powers associated with such position as set forth in any job description provided to Executive by the Bank, and as may be set forth in the bylaws 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 initial term of this Agreement and the period of Executive’s employment hereunder shall begin as of the Effective Date and shall continue through December 31, 2028. Commencing on
January 1, 2027 and continuing on each January 1st thereafter (each, a “Renewal Date”), this Agreement shall automatically extend for an
additional year such that the remaining Term shall be three (3) years, unless either the Bank or the Executive by written notice of non-renewal to the other given at least 30 days prior to such Renewal Date notifies the other of its intent not to
extend the Term. In the event that notice is given by either the Bank or Executive, this Agreement will terminate as of the last day of the then current Term. For purposes of this Agreement, the “Term” shall include the initial Term and any
extensions thereto.
(b) Change in Control. Notwithstanding the foregoing, in the event the
Bank or the Company has entered into an agreement to effect a transaction that would be considered a Change in Control as defined under Section 5 hereof, the term of this Agreement shall be extended automatically so that it is scheduled to expire
no less than three (3) years beyond the
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effective date of the Change in Control, subject to extensions as set forth above.
(c) Membership on Other Boards or Organizations. During the period of
Executive’s employment hereunder, except for periods of absence occasioned by illness, reasonable vacation periods, and reasonable leaves of absence, Executive will devote all of Executive’s business time, attention, skill and efforts to the
faithful performance of Executive’s duties under this Agreement, including activities and duties related to the Executive Position. Notwithstanding the preceding sentence, subject to the approval of the 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 Executive’s 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.
(d) 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 of this Agreement.
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3.
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COMPENSATION, BENEFITS AND REIMBURSEMENT.
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(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 salary of $201,375 per year (“Base Salary”). Such Base Salary will be payable in accordance with the customary payroll practices of the Bank. During the term of this Agreement, the Board may increase, but not decrease (other than a decrease which is applicable to all senior officers of
the Bank and in a percentage not in excess of the percentage decrease for other senior officers), Executive’s Base Salary as the Board deems appropriate. Any change in Base Salary will become the “Base Salary” for purposes of this Agreement.
(b) Bonus. Executive shall be eligible to participate in any bonus
plan or arrangement of the Bank or the Company in which senior management is eligible to participate. Nothing paid to Executive under any such plan or arrangement will be deemed to be in lieu of the other compensation to which Executive is
entitled under this Agreement.
(c) Benefit Plans. Executive will be entitled to participate in all
employee benefit plans, arrangements and perquisites offered to employees and officers of the Bank, on the same terms and conditions as such plans are available to other employees and officers of the Bank. Without limiting the generality of the
foregoing provisions of this Section 3(c), Executive also will be entitled to participate in any employee benefit plans including but not limited to retirement plans, pension plans, profit-sharing plans, health-and-accident plans, or any other
employee benefit plan or arrangement made available by the Bank in the future to management employees, subject to and on a basis consistent with the terms, conditions and overall administration of such plans and arrangements as applicable to other
management employees.
(d) Vacation. Executive will be entitled to paid vacation time each
year during the term of this Agreement measured on a calendar year basis, in accordance with the Bank’s customary practices, as well as sick leave, holidays and other paid absences in accordance with
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the Bank’s policies and procedures for officers. 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.
(e) Expense Reimbursements. The Bank will reimburse Executive for all
reasonable travel, entertainment and other reasonable expenses incurred by Executive during the course of performing Executive’s obligations under this Agreement, including, without limitation, fees for memberships in such organizations as
Executive and the Board mutually agree are necessary and appropriate in connection with the performance of Executive’s duties under this Agreement, upon substantiation of such expenses in accordance with applicable policies and procedures of the
Bank. All reimbursements pursuant to this Section 3(e) shall be paid promptly by the Bank and in any event no later than 30 days following the date on which the expense was incurred.
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4.
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TERMINATION AND TERMINATION PAY.
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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. Executive’s employment under this Agreement will terminate
upon Executive’s death during the term of this Agreement, in which event Executive’s estate or beneficiary shall be paid Executive’s Base Salary at the rate in effect at the time of Executive’s death for a period of one (1) year following
Executive’s death (payable in accordance with the regular payroll practices of the Bank). In addition, for one (1) year following Executive’s death, provided that Executive’s dependents timely elect continued medical and dental coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Bank will provide Executive’s dependents with the amount of the monthly
COBRA premiums (or reimburse Executive’s dependents for such COBRA premiums) for substantially comparable coverage to the coverage maintained by the Bank for Executive and Executive’s family immediately prior to Executive’s death.
(b) Disability. This Agreement shall terminate in the event of
Executive’s “Disability” as determined by the Board in its sole discretion, in which event Executive shall be entitled to receive the compensation and vested benefits due to Executive as of the date of Executive’s Disability, and Executive shall
have no right to receive any other compensation or benefits under this Agreement. “Disability” shall mean Executive’s permanent and totally physical or
mental impairment that restricts Executive from performing all the essential functions of normal employment.
(c) Termination for Cause. The Board may immediately terminate
Executive’s employment at any time for “Cause.” Executive shall have no right to receive compensation or other benefits for any period after termination for Cause, except for benefits that have vested prior to the date of termination for Cause.
Termination for “Cause” shall mean termination because of, in the good faith determination of the Board, Executive’s:
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(i)
|
material act of dishonesty or fraud in performing Executive’s duties on behalf of the Bank;
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(ii)
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willful misconduct that in the judgment of the Board will likely cause economic damage to the Bank or injury to the business reputation of the
Bank;
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(iii)
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incompetence (in determining incompetence, the acts or omissions shall be measured against standards generally prevailing in the banking industry);
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(iv)
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breach of fiduciary duty involving personal profit;
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(v)
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intentional failure to perform stated duties under this Agreement after written notice thereof from the Board;
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(vi)
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willful violation of any law, rule or regulation (other than traffic violations or similar offenses which results only in a fine or other
non-custodial penalty) that reflect adversely on the reputation of the Bank, any felony conviction, any violation of law involving moral turpitude, or any violation of a final cease-and-desist order; or any violation of the policies and
procedures of the Bank as outlined in the Bank’s employee handbook, which would result in termination of the Bank employees, as from time to time amended and incorporated herein by reference; or
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(vii)
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material breach by Executive of any provision of this Agreement.
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(d) Voluntary Termination by Executive. Executive may voluntarily
terminate employment during the term of this Agreement 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 Executive’s voluntary termination of employment, except for the compensation or benefits that have already been earned or vested. 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),
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4
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 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 amount of Base Salary that would have been earned by Executive had Executive
remained employed with the Bank for the greater of: (A) 12 months; or (B) the remaining term of this Agreement (the “Benefit Period”). Such payment
shall be made to Executive within 30 days following Executive’s date of termination and will be subject to applicable withholding taxes.
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(iii)
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In addition, provided that Executive timely elects continued COBRA coverage, the Bank will provide to Executive cash payments equal to the
monthly COBRA premiums (or reimburse Executive for such COBRA premiums) for coverage substantially comparable (and on substantially the same terms and conditions) to the coverage maintained by the Bank for Executive immediately prior to
Executive’s termination under the same cost-sharing arrangements that apply for active employees of the Bank as of Executive’s date of termination. Such payments (or reimbursements) for continued coverage shall cease upon the earlier of:
(A) the completion of the Benefit Period; (B) 18 months; or (C) the date on which Executive becomes a full-time employee of another employer, provided Executive is entitled to benefits that are substantially similar to the health and
welfare benefits provided by the Bank.
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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 in Executive’s Base Salary;
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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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a relocation of Executive’s principal place of employment by more than 50 miles from the Bank’s main office location as of the date of this
Agreement; or
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(D)
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a material breach of this Agreement by the Bank.
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(v)
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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,
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5
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.
(f) Effect on Status as a Director and Other Positions. In the event
of Executive’s termination of employment under this Agreement for any reason, such termination shall also constitute Executive’s resignation as a director, employee, trustee, consultant and agent of the Bank or the Company, or any subsidiary or
affiliate thereof, except as otherwise agreed between Executive and the Bank and/or the Company.
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5.
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CHANGE IN CONTROL.
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(a) Change in Control Defined. For purposes of this Agreement, the
term “Change in Control” shall mean the occurrence of any of the following events:
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(i)
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Merger: The Bank or the Company merges into or
consolidates with another entity whereby the Bank or the Company is not the surviving entity, or the Bank or the Company merges another bank or corporation into the Bank or the Company, and as a result, less than a majority of the combined
voting power of the resulting corporation immediately after the merger or consolidation is held by persons who were stockholders of the Company or the Bank immediately before the merger or consolidation;
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(ii)
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Acquisition of Significant Share Ownership: There is
filed, or is required to be filed, a report on Schedule 13D or another form or schedule (other than Schedule 13G) required under Sections 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, if the schedule discloses that the
filing person or persons acting in concert has or have become the beneficial owner of 25% or more of a class of the Company’s or the Bank’s voting securities; provided, however, this clause (ii) shall not apply to beneficial ownership of
the Company’s or the Bank’s voting shares held in a fiduciary capacity by an entity of which the Company directly or indirectly beneficially owns 50% or more of its outstanding voting securities;
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(iii)
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Change in Board Composition: During any period of two
(2) consecutive years, individuals who constitute the Company’s or the Bank’s Board of
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6
Directors at the beginning of the two-year period cease for any reason to constitute at least a majority of the Company’s or the Bank’s
Board of Directors; provided, however, that for purposes of this clause (iii), each director who is first elected to the board (or first nominated by the board for election by the stockholders) by a vote of at least two-thirds (2/3) of the directors
who were directors at the beginning of the two-year period or who is appointed to the Board as the result of a directive, supervisory agreement or order issued by the primary federal regulator of the Company or the Bank shall be deemed to have also
been a director at the beginning of such period; or
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(iv)
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Sale of Assets: The Company or the Bank sells to a
third party all or substantially all of its assets.
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Notwithstanding anything herein to the contrary, a transaction will not be deemed a Change in Control unless such transaction qualifies
as a “change in the ownership,” or “change in effective control,” or “change in the ownership of a substantial portion of the assets” of the corporation in accordance with Section 409A of the Code.
(b) Change in Control Benefits. Upon the termination of Executive’s
employment by the Bank (or any successor) Without Cause or by Executive With Good Reason on or after the effective time of a Change in Control, the Bank (or any successor) shall pay Executive, or in the event of Executive’s subsequent death,
Executive’s beneficiary or estate, as severance pay an amount equal to three (3) times the sum of Executive’s: (i) highest annual rate of Base Salary; and (ii) highest annual cash bonus paid to, or earned by, Executive during the calendar year of
the Change in Control or either of the two (2) calendar years immediately preceding the Change in Control. Such payments shall be made in a lump sum within 30 days following Executive’s date of termination, and will be subject to applicable
withholding taxes. In addition, the Bank will provide to Executive a lump sum cash payment equal to the monthly COBRA premiums for coverage substantially comparable to the coverage maintained by the Bank for Executive immediately prior to
Executive’s termination multiplied by 36. 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).
(a) Non-Solicitation/Non-Compete. Executive hereby covenants and
agrees that, for a period of one (1) year following Executive’s termination of employment with the Bank, and except as provided in (iv),
Executive shall not, without the written consent of the Bank, either directly or indirectly:
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(i)
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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 and accept employment or become affiliated with, or provide services for compensation in any
capacity whatsoever to, any business whatsoever that
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7
competes with the business of the Bank, or any of their direct or indirect subsidiaries or affiliates, that has headquarters or offices
within 25 miles of any location(s) in which the Bank has business operations or has filed an application for regulatory approval to establish an office;
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(ii)
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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, credit union, bank or bank holding company, insurance company or agency, any mortgage or
loan broker or any other entity that competes with the business of the Bank or any of their direct or indirect subsidiaries or affiliates, that: (A) has a headquarters within 25 miles of the Bank’s headquarters (the “Restricted Territory”), or (B) has one or more offices, but is not headquartered, within the Restricted Territory, but in the latter case, only if Executive would be
employed, conduct business or have other responsibilities or duties within the Restricted Territory; or
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(iii)
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solicit, provide any information, advice or recommendation or take any other action intended (or that a reasonable person acting in like
circumstances would expect) to have the effect of causing any customer of the Bank to terminate an existing business or commercial relationship with the Bank.
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(iv)
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The restrictions contained in this Section 6(a) shall not apply in the event of Executive’s termination of employment on or after the effective
time of a Change in Control.
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(b) Confidentiality. Executive recognizes and acknowledges that the
knowledge of the business activities, plans for business activities, and all other proprietary information of the Bank, as it may exist from time to time, are valuable, special and unique assets of the business of the Bank. Executive will not,
during or after the term of Executive’s employment, disclose any knowledge of the past, present, planned or considered business activities or any other similar proprietary information of the Bank 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. Further, Executive may disclose information regarding the business activities of the Bank to any bank regulator having regulatory jurisdiction over the activities
of the Bank pursuant to a formal regulatory request. In the event of a breach or threatened breach by Executive of the provisions of this Section, the Bank 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 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 from pursuing any other remedies available to the Bank for such breach or threatened breach, including the recovery
of damages from Executive.
8
(c) 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.
(d) 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 experience and capabilities are such that Executive can obtain employment in a business engaged in other lines of business than the Bank, and that the
enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. 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 contains the entire understanding between the parties hereto and supersedes any prior employment agreement between the
Bank or any 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 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.
9
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 Bank’s 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) If Executive is suspended from office and/or temporarily prohibited from participating in the conduct of the Bank’s affairs by a notice served under Section 8(e)(3) [12 U.S.C.
§1818(e)(3)] or 8(g)(1) [12 U.S.C. §1818(g)(1)] of the Federal Deposit Insurance Act (the “FDI Act”), the Bank’s obligations under this Agreement shall be suspended as of the date of service, unless stayed by appropriate proceedings. If the
charges in the notice are dismissed, the Bank may in its discretion: (i) pay Executive all or part of the compensation withheld while its contract obligations were suspended and (ii) reinstate (in whole or in part) any of its obligations which were
suspended.
(c) If Executive is removed and/or permanently prohibited from participating in the conduct of the Bank’s affairs by an order issued under Section 8(e)(4) [12 U.S.C. §1818(e)(4)] or
8(g)(1) [12 U.S.C. §1818(g)(1)] of the FDI Act, all obligations of the Bank under this Agreement shall terminate as of the effective date of the order, but vested rights of the contracting parties shall not be affected.
(d) If the Bank is in default as defined in Section 3(x)(1) [12 U.S.C. §1813(x)(1)] of the FDI Act, all obligations of the Bank under this Agreement shall terminate as of the date
of default, but this paragraph shall not affect any vested rights of the contracting parties.
(e) All obligations under this Agreement shall be terminated, except to the extent determined that continuation of this Agreement is necessary for the continued operation of the
Bank, (i) by the Comptroller of the Office of the Comptroller of the Currency or his or her designee, at the time the FDIC enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Section 13(c) [12
U.S.C. §1823(c)] of the FDI Act; or (ii) by the Comptroller or his or her designee at the time the Comptroller or his or her designee
10
approves a supervisory merger to resolve problems related to operation of the Bank or when the Bank is determined by the Comptroller to be in an unsafe or
unsound condition. Any rights of the parties that have already vested, however, shall not be affected by such action.
(f) 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.
(g) 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 Section 409A of the Code. 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 termination. For all purposes hereunder, the definition of Separation from Service shall be interpreted consistent
with Treasury Regulation Section 1.409A-1(h)(ii). Notwithstanding the foregoing, this Section 11(g) shall not apply in the event of the Executive’s termination for Cause.
(h) 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.
(i) 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).
(j) 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.
11
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.
14. ARBITRATION.
Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by binding arbitration, as an
alternative to civil litigation and without any trial by jury to resolve such claims, conducted by a single arbitrator mutually acceptable to the Bank and Executive, sitting in a location selected by the Bank within 50 miles from the main office of the Bank, in accordance with the rules of the American Arbitration Association’s National Rules for the Resolution of Employment Disputes then in
effect. Judgment may be entered on the arbitrator’s award in any court having jurisdiction. The cost of the arbitrator shall be paid by the Bank; all other costs of arbitration shall be borne by the respective parties, except as otherwise provided
in Section 14.
15. PAYMENT OF LEGAL FEES.
To the extent that such payment(s) may be made without triggering penalty under Section 409A of the Code, all reasonable legal fees paid
or incurred by Executive pursuant to any dispute relating to this Agreement shall be paid or reimbursed by the Bank provided that the dispute is resolved in Executive’s favor, and such reimbursement shall occur no later than 60 days after the end of
the year in which the dispute is settled or resolved in Executive’s favor.
16. 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 reasonably incurred by Executive in connection with or arising out of any action, suit or proceeding in which Executive may be involved by reason of Executive having been a director or officer of the Bank or
any subsidiary or affiliate of the Bank.
17. 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
12
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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Seneca Savings Bank, National Association
35 Oswego St.
Baldwinsville, NY 13027
Attention: Chairman of the Board
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To Executive:
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Most recent address on file with the Bank
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[Signature Page Follows]
13
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date firstwritten above.
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SENECA SAVINGS BANK,
NATIONAL ASSOCIATION
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By: /s/ Joseph Vitale
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Name: Joseph Vitale
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Title: President and Chief Executive Officer
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EXECUTIVE
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| /s/ Angelo Testani | |
14
EXHIBIT 10.5
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the “Agreement”)
is made and entered into, effective as of May 29, 2026 (the “Effective Date”),
by and between Seneca Savings Bank, National Association (the “Bank”) and Joseph G. Vitale (“Executive”) and supersedes and replaces the prior employment agreement by and between Executive originally effective as of April 6, 2017 (the “Prior
Agreement”). Any reference to the “Company” means Seneca Bancorp, Inc., the stock holding company of the Bank, or any successor thereto.
WHEREAS, the Bank desires to
assure itself of the continued services of Executive for the period provided in 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 President and Chief Executive Officer of the Bank and the Company (the “Executive Position”), and will perform the duties and will have all powers associated with such position as set forth in any job description provided to Executive
by the Bank, and as may be set forth in the bylaws 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 initial term of this Agreement and the period of Executive’s employment hereunder shall begin as of the Effective Date and shall continue through December 31, 2028. Commencing on
January 1, 2027 and continuing on each January 1st thereafter (each, a “Renewal Date”), this Agreement shall automatically extend for an
additional year such that the remaining Term shall be three (3) years, unless either the Bank or the Executive by written notice of non-renewal to the other given at least 30 days prior to such Renewal Date notifies the other of its intent not to
extend the Term. In the event that notice is given by either the Bank or Executive, this Agreement will terminate as of the last day of the then current Term. For purposes of this Agreement, the “Term” shall include the initial Term and any
extensions thereto.
(b) Change in Control. Notwithstanding the foregoing, in the event the
Bank or the Company has entered into an agreement to effect a transaction that would be considered a Change in Control as defined under Section 5 hereof, the term of this Agreement shall be extended automatically so that it is scheduled to expire
no less than three (3) years beyond the effective date of the Change in Control, subject to extensions as set forth above.
1
(c) 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, 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.
(d) 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 of this Agreement.
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3.
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COMPENSATION, BENEFITS AND REIMBURSEMENT.
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(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 salary of $270,000 per year (“Base Salary”). Such Base Salary will be payable in accordance with the customary payroll practices of the Bank. During the term of this
Agreement, the Board may increase, but not decrease (other than a decrease which is applicable to all senior officers of the Bank and in a percentage not in excess of the percentage decrease for other senior officers), Executive’s Base Salary as
the Board deems appropriate. Any change in Base Salary will become the “Base Salary” for purposes of this Agreement.
(b) Bonus. Executive shall be eligible to participate in any bonus
plan or arrangement of the Bank or the Company in which senior management is eligible to participate. Nothing paid to Executive under any such plan or arrangement will be deemed to be in lieu of the other compensation to which Executive is
entitled under this Agreement.
(c) Benefit Plans. Executive will be entitled to participate in all
employee benefit plans, arrangements and perquisites offered to employees and officers of the Bank, on the same terms and conditions as such plans are available to other employees and officers of the Bank. Without limiting the generality of the
foregoing provisions of this Section 3(c), Executive also will be entitled to participate in any employee benefit plans including but not limited to retirement plans, pension plans, profit-sharing plans, health-and-accident plans, or any other
employee benefit plan or arrangement made available by the Bank in the future to management employees, subject to and on a basis consistent with the terms, conditions and overall administration of such plans and arrangements as applicable to other
management employees.
(d) Vacation. Executive will be entitled to paid vacation time each
year during the term of this Agreement measured on a calendar year basis, 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
officers. 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
2
time.
(e) 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 Board 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. All
reimbursements pursuant to this Section 3(e) shall be paid promptly by the Bank and in any event no later than 30 days following the date on which the expense was incurred.
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4.
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TERMINATION AND TERMINATION PAY.
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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. Executive’s employment under this Agreement will terminate
upon Executive’s death during the term of this Agreement, in which event Executive’s estate or beneficiary shall be paid Executive’s Base Salary at the rate in effect at the time of Executive’s death for a period of one (1) year following
Executive’s death (payable in accordance with the regular payroll practices of the Bank). In addition, for one (1) year following Executive’s death, provided that Executive’s dependents timely elect continued medical and dental coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Bank will provide Executive’s dependents with the amount of the monthly
COBRA premiums (or reimburse Executive’s dependents for such COBRA premiums) for substantially comparable coverage to the coverage maintained by the Bank for Executive and Executive’s family immediately prior to Executive’s death.
(b) Disability. This Agreement shall terminate in the event of
Executive’s “Disability” as determined by the Board in its sole discretion, in which event Executive shall be entitled to receive the compensation and vested benefits due to Executive as of the date of Executive’s Disability, and Executive shall
have no right to receive any other compensation or benefits under this Agreement. “Disability” shall mean Executive’s permanent and totally physical or
mental impairment that restricts Executive from performing all the essential functions of normal employment.
(c) Termination for Cause. The Board may immediately terminate
Executive’s employment at any time for “Cause.” Executive shall have no right to receive compensation or other benefits for any period after termination for Cause, except for benefits that have vested prior to the date of termination for Cause.
Termination for “Cause” shall mean termination because of, in the good faith determination of the Board, Executive’s:
(i) material act of dishonesty or fraud in performing Executive’s duties on behalf of the Bank;
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(ii) willful misconduct that in the judgment of the Board will likely cause economic damage to the Bank or injury to the business reputation of the
Bank;
(iii) incompetence (in determining incompetence, the acts or omissions shall be measured against standards generally prevailing in the banking
industry);
(iv) breach of fiduciary duty involving personal profit;
(v) intentional failure to perform stated duties under this Agreement after written notice thereof from the Board;
(vi) willful violation of any law, rule or regulation (other than traffic violations or similar offenses which results only in a fine or other
non-custodial penalty) that reflect adversely on the reputation of the Bank, any felony conviction, any violation of law involving moral turpitude, or any violation of a final cease-and-desist order; or any violation of the policies and procedures
of the Bank as outlined in the Bank’s employee handbook, which would result in termination of the Bank employees, as from time to time amended and incorporated herein by reference; or
(vii) material breach by Executive of any provision of this Agreement.
(d) Voluntary Termination by Executive. Executive may voluntarily
terminate employment during the term of this Agreement 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 for the compensation or benefits that have already been earned or vested. 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 Executive,
or in
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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 amount of Base Salary that would have been earned by Executive had he remained employed with the Bank for the greater of: (A) 12 months; or (B) the remaining term of this Agreement (the “Benefit Period”). Such payment shall be made to Executive within 30 days following Executive’s date of termination, and will be subject to applicable withholding taxes.
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(iii)
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In addition, provided that Executive timely elects continued COBRA coverage, the Bank will provide to Executive cash payments equal to the
monthly COBRA premiums (or reimburse Executive for such COBRA premiums) for coverage substantially comparable (and on substantially the same terms and conditions) to the coverage maintained by the Bank for Executive immediately prior to
Executive’s termination under the same cost-sharing arrangements that apply for active employees of the Bank as of Executive’s date of termination. Such payments (or reimbursements) for continued coverage shall cease upon the earlier of:
(A) the completion of the Benefit Period; (B) 18 months; or (C) the date on which Executive becomes a full-time employee of another employer, provided Executive is entitled to benefits that are substantially similar to the health and
welfare benefits provided by the Bank.
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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 in Executive’s Base Salary;
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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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a relocation of Executive’s principal place of employment by more than 50 miles from the Bank’s main office location as of the date of this
Agreement; or
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(D)
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a material breach of this Agreement by the Bank.
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(v)
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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
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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 Code Section 409A, the payments
and benefits described in this Section 4(e) will be paid, or commence, in the second calendar year.
(f) Effect on Status as a Director and Other Positions. In the event
of Executive’s termination of employment under this Agreement for any reason, such termination shall also constitute Executive’s resignation as a director, employee, trustee, consultant and agent of the Bank or the Company, or any subsidiary or
affiliate thereof, except as otherwise between Executive and the Bank and/or the Company.
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5.
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CHANGE IN CONTROL.
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(a) Change in Control Defined. For purposes of this Agreement, the
term “Change in Control” shall mean the occurrence of any of the following events:
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(i)
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Merger: The Bank or the Company merges into or
consolidates with another entity whereby the Bank or the Company is not the surviving entity, or the Bank or the Company merges another bank or corporation into the Bank or the Company, and as a result, less than a majority of the combined
voting power of the resulting corporation immediately after the merger or consolidation is held by persons who were stockholders of the Company or the Bank immediately before the merger or consolidation;
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(ii)
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Acquisition of Significant Share Ownership: There is
filed, or is required to be filed, a report on Schedule 13D or another form or schedule (other than Schedule 13G) required under Sections 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, if the schedule discloses that the
filing person or persons acting in concert has or have become the beneficial owner of 25% or more of a class of the Company’s or the Bank’s voting securities; provided, however, this clause (ii) shall not apply to beneficial ownership of
the Company’s or the Bank’s voting shares held in a fiduciary capacity by an entity of which the Company directly or indirectly beneficially owns 50% or more of its outstanding voting securities;
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(iii)
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Change in Board Composition: During any period of two
(2) consecutive years, individuals who constitute the Company’s or the Bank’s Board of Directors at the beginning of the two-year period cease for any reason to constitute at least a majority of the Company’s or the Bank’s Board of
Directors; provided, however, that for purposes of this clause (iii), each director who is first elected to the board (or first nominated by the board for election by the stockholders) by a vote of at least two-thirds (2/3) of the directors
who were directors at the beginning of the two-year period or
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6
who is appointed to the Board as the result of a directive, supervisory agreement or order issued by the primary federal regulator of
the Company or the Bank shall be deemed to have also been a director at the beginning of such period; or
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(iv)
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Sale of Assets: The Company or the Bank sells to a
third party all or substantially all of its assets.
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Notwithstanding anything herein to the contrary, a transaction will not be deemed a Change in Control unless such transaction qualifies
as a “change in the ownership,” or “change in effective control,” or “change in the ownership of a substantial portion of the assets” of the corporation in accordance with Section 409A of the Code.
(b) Change in Control Benefits. Upon the termination of Executive’s
employment by the Bank (or any successor) Without Cause or by Executive With Good Reason on or after the effective time of a Change in Control, the Bank (or any successor) shall pay Executive, or in the event of Executive’s subsequent death,
Executive’s beneficiary or estate, as severance pay an amount equal to three (3) times the sum of Executive’s: (i) highest annual rate of Base Salary; and (ii) highest annual cash bonus paid to, or earned by, Executive during the calendar year of
the Change in Control or either of the two (2) calendar years immediately preceding the Change in Control. Such payments shall be made in a lump sum within 30 days following Executive’s date of termination, and will be subject to applicable
withholding taxes. In addition, the Bank will provide to Executive a lump sum cash payment equal to the monthly COBRA premiums for coverage substantially comparable to the coverage maintained by the Bank for Executive immediately prior to
Executive’s termination multiplied by 36. 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).
6. COVENANTS OF EXECUTIVE.
(a) Non-Solicitation/Non-Compete. Executive hereby covenants and
agrees that, for a period of one (1) year following Executive’s termination of employment with the Bank, and except as provided in (iv),
Executive shall not, without the written consent of the Bank, either directly or indirectly:
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(i)
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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 and accept employment or become affiliated with, or provide services for compensation in any
capacity whatsoever to, any business whatsoever that competes with the business of the Bank, or any of their direct or indirect subsidiaries or affiliates, that has headquarters or offices within 25 miles of any location(s) in which the
Bank has business operations or has filed an application for regulatory approval to establish an office;
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7
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(ii)
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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, credit union, bank or bank holding company, insurance company or agency, any mortgage or
loan broker or any other entity that competes with the business of the Bank or any of their direct or indirect subsidiaries or affiliates, that: (A) has a headquarters within 25 miles of the Bank’s headquarters (the “Restricted Territory”), or (B) has one or more offices, but is not headquartered, within the Restricted Territory, but in the latter case, only if Executive would be
employed, conduct business or have other responsibilities or duties within the Restricted Territory; or
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(iii)
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solicit, provide any information, advice or recommendation or take any other action intended (or that a reasonable person acting in like
circumstances would expect) to have the effect of causing any customer of the Bank to terminate an existing business or commercial relationship with the Bank.
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(iv)
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The restrictions contained in this Section 6(a) shall not apply in the event of Executive’s termination of employment on or after the effective
time of a Change in Control.
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(b) Confidentiality. Executive recognizes and acknowledges that the
knowledge of the business activities, plans for business activities, and all other proprietary information of the Bank, as it may exist from time to time, are valuable, special and unique assets of the business of the Bank. Executive will not,
during or after the term of Executive’s employment, disclose any knowledge of the past, present, planned or considered business activities or any other similar proprietary information of the Bank 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. Further, Executive may disclose information regarding the business activities of the Bank to any bank regulator having regulatory jurisdiction over the activities
of the Bank pursuant to a formal regulatory request. In the event of a breach or threatened breach by Executive of the provisions of this Section, the Bank 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 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 from pursuing any other remedies available to the Bank for such breach or threatened breach, including the recovery
of damages from Executive.
(c) 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;
8
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.
(d) 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 experience and capabilities are such that Executive can obtain employment in a business engaged in other lines of business than the Bank, and that the
enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. 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 contains the entire understanding between the parties hereto and supersedes any prior employment agreement between the
Bank or any predecessor of the Bank and Executive (including the Prior Agreement), 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 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 Bank’s 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) If Executive is suspended from office and/or temporarily prohibited from participating in the conduct of the Bank’s affairs by a notice served under Section 8(e)(3) [12 U.S.C.
§1818(e)(3)] or 8(g)(1) [12 U.S.C. §1818(g)(1)] of the Federal Deposit Insurance Act (the “FDI Act”), the Bank’s obligations under this Agreement shall be suspended as of the date of service, unless stayed by appropriate proceedings. If the
charges in the notice are dismissed, the Bank may in its discretion: (i) pay Executive all or part of the compensation withheld while its contract obligations were suspended and (ii) reinstate (in whole or in part) any of its obligations which were
suspended.
(c) If Executive is removed and/or permanently prohibited from participating in the conduct of the Bank’s affairs by an order issued under Section 8(e)(4) [12 U.S.C. §1818(e)(4)] or
8(g)(1) [12 U.S.C. §1818(g)(1)] of the FDI Act, all obligations of the Bank under this Agreement shall terminate as of the effective date of the order, but vested rights of the contracting parties shall not be affected.
(d) If the Bank is in default as defined in Section 3(x)(1) [12 U.S.C. §1813(x)(1)] of the FDI Act, all obligations of the Bank under this Agreement shall terminate as of the date
of default, but this paragraph shall not affect any vested rights of the contracting parties.
(e) All obligations under this Agreement shall be terminated, except to the extent determined that continuation of this Agreement is necessary for the continued operation of the
Bank, (i) by the Comptroller of the Office of the Comptroller of the Currency or his or her designee, at the time the FDIC enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Section 13(c) [12
U.S.C. §1823(c)] of the FDI Act; or (ii) by the Comptroller or his or her designee at the time the Comptroller or his or her designee approves a supervisory merger to resolve problems related to operation of the Bank or when the Bank is determined
by the Comptroller to be in an unsafe or unsound condition. Any rights of the parties that have already vested, however, shall not be affected by such action.
9
(f) 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.
(g) 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 Section 409A of the Code. 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 termination. For all purposes hereunder, the definition of Separation from Service shall be interpreted consistent
with Treasury Regulation Section 1.409A-1(h)(ii). Notwithstanding the foregoing, this Section 11(g) shall not apply in the event of the Executive’s termination for Cause.
(h) 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.
(i) 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).
(j) 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.
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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.
14. ARBITRATION.
Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by binding arbitration, as an
alternative to civil litigation and without any trial by jury to resolve such claims, conducted by a single arbitrator mutually acceptable to the Bank and Executive, sitting in a location selected by the Bank within 50 miles from the main office of the Bank, in accordance with the rules of the American Arbitration Association’s National Rules for the Resolution of Employment Disputes then in
effect. Judgment may be entered on the arbitrator’s award in any court having jurisdiction. The cost of the arbitrator shall be paid by the Bank; all other costs of arbitration shall be borne by the respective parties, except as otherwise provided
in Section 14.
15. PAYMENT OF LEGAL FEES.
To the extent that such payment(s) may be made without triggering penalty under Section 409A of the Code, all reasonable legal fees paid
or incurred by Executive pursuant to any dispute relating to this Agreement shall be paid or reimbursed by the Bank provided that the dispute is resolved in Executive’s favor, and such reimbursement shall occur no later than 60 days after the end of
the year in which the dispute is settled or resolved in Executive’s favor.
16. 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 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.
17. 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
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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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Seneca Savings Bank, National Association
35 Oswego St.
Baldwinsville, NY 13027
Attention: Chairman of the Board
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To Executive:
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Most recent address on file with the Bank
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[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date first written above.
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SENECA SAVINGS BANK,
NATIONAL ASSOCIATION
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By: /s/ Vincent J. Fazio
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Name: Vincent J. Fazio
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Title: Executive Vice President and Chief Financial Officer
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EXECUTIVE
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| /s/ Joseph G. Vitale | |
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Joseph G. Vitale
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