Exhibit 10.1


 


AMENDED AND RESTATED AGREEMENT UNDER
THE


FIRST UNITED CORPORATION


CHANGE IN CONTROL SEVERANCE PLAN


 


THIS AMENDED AND RESTATED
AGREEMENT (the “Agreement”) is entered into this 8th day of January, 2021 by and between First
United Corporation, a Maryland corporation (“the Company”), and Carissa L. Rodeheaver, an executive officer
of the Company (the “Eligible Employee”).


 


RECITALS:


 


WHEREAS, the Company
adopted the First United Corporation Change in Control Severance Plan effective as of February 14, 2007, as amended and supplemented
from time to time, a copy of which is attached hereto as Exhibit A (the “Plan”); and


 


WHEREAS,  the
Eligible Employee has been designated as a participant in the Plan;


 


WHEREAS, the Company
and the Eligible Employee entered into an Agreement under the First United Corporation Change in Control Severance Plan, dated
as of February 14, 2007, that sets forth the benefits to which the Eligible Employee is entitled under the Plan, which was
amended by a First Amendment thereto, dated as of December 28, 2012 (collectively, the “Original Agreement”),
the current term of which commenced on February 14, 2020 (the “Effective Date”); and


 


WHEREAS, the Company
and the Eligible Employee desire to amend and restate the Original Agreement to revise certain provisions relating to the benefits
to which the Eligible Employee is entitled under the Plan and to update the Original Agreement.


 


NOW, THEREFORE, in
consideration of the foregoing, the agreements and covenants set forth herein, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to enter into this Agreement, as follows:


 


1.            Definitions.
Except as defined in the Recitals and below, capitalized terms in this Agreement shall have the meanings given those terms in the
Plan.


 


		(a)	“Base Amount” means the Eligible Employee’s “annualized includible
compensation for the base period,” within the meaning of Sections 280G(d)(1) and (d)(2) of the Code and the Treasury
Regulations thereunder.



 


		(b)	“Cause” means one of the following reasons for which the Eligible Employee’s
employment with the Employer is terminated: (1) willful or grossly negligent misconduct that is materially injurious to the
Employer; (2) embezzlement or misappropriation of funds or property of the Employer; (3) conviction of a felony or the
entrance of a plea of guilty or nolo contendere to a felony; (4) conviction of any crime involving fraud, dishonesty, moral
turpitude or breach of trust or the entrance of a plea of guilty or nolo contendere to such a crime; (5) failure or refusal
by the Eligible Employee to devote full business time and attention to the performance of her duties and responsibilities if such
breach has not been cured within 15 days after notice is given to the Eligible Employee; or (6) issuance of a final non-appealable
order or other direction by a Federal or state regulatory agency prohibiting the Eligible Employee’s employment in the business
of banking.



 






     


     


    

 


		(c)	“Change in Control Severance Benefits” means the benefits payable pursuant to
Section 3 of this Agreement.



 


		(d)	“Change in Control Protection Period” means the period commencing on the date
that is 90 days before the date a Change in Control occurs and ending on the first anniversary of the date the Change in Control
occurs.



 


		(e)	“Contingent Payments” means payments in the “nature of compensation”
to (or for the benefit) of an Eligible Employee if such payment is “contingent on a change in the ownership or effective
control of the corporation or in the ownership of a substantial portion of the assets of the corporation,” as such terms
are defined in Section 280G of the Code and the Treasury Regulations thereunder.



 


		(f)	“Disability” shall have the meaning given that term under the First United Bank &
Trust Long Term Disability Plan, as in effect at the time a determination of Disability is to be made.



 


		(g)	“Employer” means the Company or an Affiliate.



 


		(h)	“Equity Plan” means each equity compensation plan adopted by the Company’s
Board of Directors, including the First United Corporation 2018 Equity Compensation Plan, and each sub-plan thereunder or thereto.



 


		(i)	“Final Pay” means the sum of (1) the Eligible Employee’s annual salary
for the year in which employment terminates, regardless of whether all such salary has been paid at the time of termination of
employment and (2) the greater of (A) the Eligible Employee’s targeted cash bonus for the year in which employment
terminates or (B) the actual cash bonus earned by the Eligible Employee for the year immediately prior to the year in which
employment terminates.



 


		(j)	“Good Reason” means, without the specific written consent of the Eligible Employee,
any of the following:



 


(1)       A
material and adverse change in the Eligible Employee’s status or position(s) as an officer or management employee of
the Employer as in effect immediately prior to the Change in Control, including, without limitation, any adverse change in her
status or position as an employee of the Employer as a result of a material diminution in her duties or responsibilities (other
than, if applicable, any such change directly attributable to the fact that the Employer is no longer publicly owned) or the assignment
to her of any duties or responsibilities which are materially inconsistent with such status or position(s) (other than any
isolated and inadvertent failure by the Employer that is cured promptly upon her giving notice), or any removal of the Eligible
Employee from or any failure to reappoint or reelect her to such position(s) (except in connection with the Eligible Employee’s
Severance other than for Good Reason).


 






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(2)       A
10% or greater reduction in the Eligible Employee’s base salary and targeted bonus from the base salary and targeted bonus
that was in effective immediately prior to the occurrence of a Change of Control, but disregarding any reduction in bonus which
occurs in accordance with the terms of any written bonus program as it reads immediately prior to the occurrence of a Change of
Control.


 


(3)       The
failure by the Employer or any successor to continue in effect any employee benefit plan (excluding any equity compensation plan)
in which the Eligible Employee is participating at the time of the Change in Control (or plans providing the Eligible Employee
with at least substantially similar benefits in the aggregate) other than as a result of the normal expiration of any such plan
in accordance with its terms as in effect at the time of the Change in Control; or the taking of any action, or the failure to
act, by the Employer or any successor which would adversely affect the Eligible Employee’s continued participation in any
of such plans on at least as favorable a basis to her as is the case on the date of the Change in Control or which would materially
reduce her benefits under any of such plans.


 


(4)       The
Employer’s requiring the Eligible Employee to be based at an office that is both more than 50 miles from where her office
is located immediately prior to the Change in Control and further from her then current residence, except for required travel
on the Employer’s business to an extent substantially consistent with the business travel obligations which the Eligible
Employee undertook on behalf of the Employer prior to the Change in Control.


 


(5)       The
failure by the Company to obtain assumption of the Plan by a successor.


 


		(k)	“Key Employee” means, for the 12-month period beginning on a particular April 1,
an Eligible Employee described in Section 416(i) of the Code (applied in accordance with the Section 416 regulations
and disregarding Section 416(i)(5) of the Code) at any time during the 12-month period ending on the preceding December 31.



 


		(l)	“Severance” means (1) the involuntary termination of the Eligible Employee’s
employment by the Employer, other than for Cause, death or Disability or (2) a termination of the Eligible Employee’s
employment by the Eligible Employee for Good Reason, in each case, during the Change in Control Protection Period; provided,
however, that in each case the termination constitutes a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of
the Code and Treasury Regulations thereunder.



 






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		(m)	“Severance Date” means the date on which the Eligible Employee incurs a Severance.



 


		(n)	“Welfare Benefit Continuation Period” means the period that (1) commences
on the first day of the month that immediately follows the month in which the Eligible Employee’s Severance Date occurs and
(2) ends on the last day of the month in which the second anniversary of such Severance Date occurs.



 


2.            Term
of Agreement. The term of this Agreement shall commence on the Effective Date and shall terminate on the first (1st)
anniversary of the Effective Date; provided, however, that (a) the Agreement shall automatically extend for additional
one-year terms unless the Company provides written notice to the Eligible Employee not less than 6 months before the end of the
then-current term; and (b) the Agreement shall automatically extend until the end of the Change in Control Protection Period
if a Change in Control occurs during the term of the Agreement.


 


3.            Change
in Control Severance Benefits.


 


		(a)	Generally.  Subject to subsections (h) and (i) below and Section 4,
the Eligible Employee shall be entitled to the Change in Control Severance Benefits provided in this Section 3 if she incurs
a Severance during the Change in Control Protection Period. Except for any benefits to which the Eligible Employee may be entitled
to receive pursuant to the First United Bank & Trust Supplemental Executive Retirement Plan (as amended or supplemented
from time to time), the Change in Control Severance Benefits provided in this Section 3 shall be the sole severance payments
and benefits to which the Eligible Employee shall be entitled during the Change in Control Protection Period.



 


		(b)	Payment of Accrued Obligations.  If the Eligible Employee incurs a Severance during
the Change in Control Protection Period, the Company shall pay to her a lump sum payment in cash, no later than 10 days after the
Severance Date, equal to the sum of (1) the Eligible Employee’s accrued annual base salary and any accrued vacation
pay through the Severance Date, and (2) the Eligible Employee’s annual bonus earned for the fiscal year immediately
preceding the fiscal year in which the Severance Date occurs if such bonus has not been paid as of the Severance Date.



 


		(c)	Payment of Severance. Subject to subsections (h) and (i) below and Section 4,
if the Eligible Employee incurs a Severance during a Change in Control Protection Period, the Company shall pay to her a lump sum
cash payment on the 60th day after the Severance Date, equal to 2.99 times the Eligible Employee’s Final Pay.



 


		(d)	[Intentionally Omitted].



 






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		(e)	Immediate Vesting of Equity-Based Compensation Awards upon a Change in Control.  Subject
to subsections (h) and (i) below and Section 4, if the Eligible Employee incurs a Severance during the Change in
Control Protection Period, (1) the unexercised portions of all stock options and stock appreciation rights granted to the
Eligible Employee under the Equity Plan that have not expired or been forfeited pursuant to their terms shall automatically accelerate
and become fully exercisable, (2) the restrictions and conditions on all outstanding stock awards granted to the Eligible
Employee under the Equity Plan that have not expired or been forfeited pursuant to their terms shall immediately lapse, (3) all
unpaid dividend equivalents granted to the Eligible Employee under the Equity Plan that have not expired or been forfeited pursuant
to their terms shall become fully payable in amounts determined by the Committee, (4) the restrictions and conditions on all
outstanding stock-based awards not described in clauses (1) through (3) above granted to the Eligible Employee that vest
based solely on the passage of time and that have not expired or been forfeited pursuant to their terms shall immediately lapse,
(5) all outstanding stock-based awards not described in clauses (1) through (3) above granted to the Eligible Employee
that vest based, in whole or in part, on the satisfaction of one or more performance criteria and that have not expired or been
forfeited pursuant to their terms shall become payable in an amount not less than their target amounts, as determined by the Committee;
provided, however, that, where a Severance precedes the Change in Control and the terms of any award granted to the Eligible
Employee under the Equity Plan would otherwise call for the forfeiture of such award upon the termination of the Eligible Employee’s
employment with the Company, such award shall not be deemed to be forfeited on account of the Eligible Employee’s Severance
and shall remain outstanding (subject to the other terms of the award, including its original term) as if the Change in Control
preceded the Severance; and provided further that if there is an inconsistency between this Section 3(f) and any
term or condition of an award agreement relating to any of the foregoing equity awards, then this Section 3(f) shall
control.



 


		(f)	Benefit Continuation.  Subject to subsections (h) and (i) below and Section 4,
if the Eligible Employee incurs a Severance during the Change in Control Protection Period, then, for each month that is included
in the Welfare Benefit Continuation Period, the Company shall make a cash payment to the Eligible Employee in an amount equal to
the amount that the Employer would have paid to cover the Eligible Employee under the Employer’s medical and dental plan(s) had
the Eligible Employee remained an active employee of the Company and covered under such plan(s) during such month (with the
same type and level of coverages that she maintained as of her Severance Date), after giving effect to any amounts that the Eligible
Employee would have paid for such coverages had she remained an active employee of the Company during such month. The Company shall
not be obligated to “gross up” or otherwise compensate the Eligible Employee for any taxes due on amounts paid pursuant
to the preceding sentence.



 






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Notwithstanding any other provision
of this subsection (f), the Company’s obligation to make the payments contemplated by the preceding paragraph shall terminate
on the date on which the Eligible Employee becomes covered under one or more plans sponsored by a new employer (other than a successor
to the Company) that, in the sole discretion of the Plan Administrator, are determined to provide coverages that are at least equivalent
in the aggregate to the coverages that the Eligible Employee would have had if she had remained an active employee of the Company
and covered under the Employer’s plan(s) during the Welfare Benefit Continuation Period.


 


		(g)	Outplacement Services.  Subject to subsection (i) below and Section 4, if
the Eligible Employee incurs a Severance during the Change in Control Protection Period, the Company shall provide her with reasonable
outplacement services for up to 12 months following the Severance Date.



 


		(h)	Release. The Company will provide the Eligible Employee with a written release and agreement
within five (5) days of his Severance during a Change in Control Protection Period. The Eligible Employee shall not be eligible
to receive any Change in Control Severance Benefits provided in this Section 3 (other than payments under Section 3(b))
and such Change in Control Severance Benefits shall be forfeited unless she has executed and submitted the written release and
agreement provided by the Company and the applicable period during which the Eligible Employee may revoke such release and agreement
has expired on or before the 60th day after the date provided in subsection 3(c).



 


		(i)	Restriction on Timing of Distribution for Key Employees. Notwithstanding any provision of
this Agreement to the contrary and to the extent required by Section 409A of the Code and the Treasury Regulations thereunder,
if the Eligible Employee is a Key Employee and any class of securities of the Company (or of any person with whom the Company would
be considered a single employer under Section 414(b) and (c) of the Code) is publicly traded as of the Eligible
Employee’s Severance Date, no distribution may be made to the Eligible Employee on account of such Severance before the date
that is six (6) months after the Severance Date (or, if earlier, the date of the Key Employee’s death).



 


4.            Reduction
of Change in Control Severance Benefits.


 


		(a)	Reduction. If it is determined
that the aggregate present value of (1) such portion of the Eligible Employee’s Change in Control Severance Benefits
that are considered Contingent Payments, and (2) all other Contingent Payments payable to the Eligible Employee
exceeds 2.99 times the Eligible Employee’s Base Amount such that the excise tax under Section 4999 of the Code would
otherwise be triggered, then the Change in Control Severance Benefits provided in Section 3(c) shall be reduced
to the extent necessary so that the aggregate present value of all Contingent Payments payable following such reduction does
not exceed 2.99 times the Eligible Employee’s Base Amount.



 


		(b)	Determination. The determination
that the aggregate present value of the Eligible Employee’s Contingent Payments exceed 2.99 times her Base Amount, and the
calculation of the amount of any reduction, shall be made, at the Company’s discretion, by the Company’s outside auditing
firm or by a nationally-recognized accounting or benefits consulting firm designated by the Company prior to a Change in Control.
The firm’s expenses shall be paid by the Company.



 






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		(c)	Payment of Remaining Benefits. If the determination is made that an Eligible Employee’s
Change in Control Severance Benefits must be reduced in accordance with Section 4(b), then the amount of such Benefits that
are actually paid to the Eligible Employee pursuant to Section 3(c) will be the amount determined under Section 4(a) (the
 “Remaining Benefits”) and such Remaining Benefits will be paid at the same time and in the same form otherwise specified
in Section 3(c).



 


5.            Taxes;
Withholding. The Eligible Employee shall be responsible for the payment of all applicable local, state and federal taxes associated
with the Eligible Employee’s participation in the Plan and the receipt of Change in Control Severance Benefits hereunder,
and the Company shall have the right to deduct from any distributions hereunder any such taxes or other amounts required by law
to be withheld therefrom.


 


6.            General
Provisions


 


		(a)	Amendment and Termination. This Agreement may not be terminated prior to the end of its
then-current term without the written consent of the Eligible Employee.  This Agreement may be amended by the Board
at any time; provided, however, that this Agreement may not be amended without the written consent of the Eligible Employee
if such amendment would in any manner adversely affect the interests of the Eligible Employee.  Any action taken by the Company
or the Plan Administrator to cause the Eligible Employee to no longer be designated as an Eligible Employee or any action taken
by the Company or the Plan Administrator to decrease the benefits for which the Eligible Employee is eligible shall be treated
as an amendment to the Agreement which adversely affects the interests of the Eligible Employee.



 


		(b)	Compliance with Law. Notwithstanding subsection (a) above or any other provision of
this Agreement to the contrary, the Company may amend, modify or terminate this Agreement, without the consent of the Eligible
Employee, as the Company deems necessary or appropriate to ensure compliance with any law, rule, regulation or other regulatory
pronouncement applicable to the Plan or this Agreement, including, without limitation, Section 409A of the Code and any Treasury
Regulations or other guidance thereunder.



 


		(c)	Governing Law. This Agreement shall be construed and enforced according to the laws of the
State of Maryland to the extent not preempted by federal law, without regard to any conflict of laws principles that would apply
the law of another jurisdiction.



 


		(d)	Severability. If any provision of this Agreement shall be held invalid or unenforceable,
such invalidity or unenforceability shall not affect any other provisions hereof, and this Agreement shall be construed and enforced
as if such provisions had not been included.



 






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		(e)	Headings and Terms. The headings and captions herein are provided for reference and convenience
only, shall not be considered part of the Agreement, and shall not be employed in the construction of the Agreement. Capitalized
terms shall have the meanings given herein. Singular nouns shall be read as plural and masculine pronouns shall be read as feminine,
and vice versa, as appropriate.



 


		(f)	Successors. This Agreement shall be binding upon each of the parties and shall also be binding
upon their respective successors or assigns.



 


		(g)	Application of the Plan; Entire Agreement. The Eligible Employee acknowledges, by executing
this Agreement, that (1) this Agreement is subject in all respects to the provisions of the Plan, as amended from time to
time, the terms of which are incorporated herein by reference and made a part hereof, (2) that a copy of the Plan and all
amendments thereto through the date hereof were provided to the Eligible Employee on the date hereof, and (3) she understands
and accepts of all of the terms and conditions of the Plan. This Agreement sets forth the entire agreement of the parties with
respect to the subject matter hereof. Any and all prior agreements or understandings with respect to such matters, including, without
limitation, the Original Agreement, are hereby superseded.



 


IN WITNESS WHEREOF,
each of the parties has caused this Agreement to be executed as of the date first set forth above.


 


	ATTEST:	 	FIRST UNITED CORPORATION
	 	 	 
	 	 	 
	/s/	 	By:	/s/ Carissa L. Rodeheaver
	 	 	Name:	Carissa L. Rodeheaver
	 	 	Title:	Chairman, President & CEO
	 	 	 
	WITNESS:	 	ELIGIBLE EMPLOYEE
	 	 	 
	/s/	 	/s/ Carissa L. Rodeheaver
	 	 	Name: Carissa L. Rodeheaver




 






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