Exhibit 10.1


 


 


 


AMENDED AND RESTATED


CHANGE IN CONTROL AGREEMENT


 


AMENDED AND RESTATED
CHANGE IN CONTROL AGREEMENT (this “Agreement”) originally effective as of the 3rd day of May, 2021 by and between HANOVER
COMMUNITY BANK, a New York state commercial bank with its principal place of business located at 80 East Jericho Turnpike,
Mineola, NY 11501, (the "Employer"), and LANCE BURKE, an individual residing at MEDFORD, NY 11763
("Employee").


 


W I T N E S S E T H:


 


WHEREAS, Employer wishes
to retain Employee;


 


WHEREAS, it is a condition
to Employee’s retention that Employer enter into this Agreement with Employee;


 


NOW, THEREFORE, in
consideration of the mutual promises and undertakings herein contained, the parties hereto, intending to be legally bound, agree as follows:


 


1.            Change
in Control.


 


(a)          Upon
the occurrence of a Change in Control (as herein defined), Employee shall be entitled to receive the payments provided for under paragraph
(c) hereof.


 


 (b)         A "Change in Control" shall mean:




 


		(i)	a reorganization, merger, consolidation or sale of all or substantially all of the assets of the Company,
or a similar transaction, in any case in which the holders of the voting stock of the Company prior to such transaction do not hold a
majority of the voting power of the resulting entity; or



 


		(ii)	individuals who constitute the Incumbent Board (as herein defined) of the Company cease for any reason
to constitute a majority thereof.



 


For these purposes, “Company”
shall mean Hanover Bancorp, Inc., the parent corporation of the Employer, and "Incumbent Board" means the Board of Directors
of the Company as of the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved
by a voting of at least three-quarters of the directors comprising the Incumbent Board, or whose nomination for election by members or
stockholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member
of the Incumbent Board.


 






    


     


    

 


(c)          In the event the conditions of Section (a) above are satisfied, Employee shall be entitled to receive a lump sum payment equal to one
(1) times the sum of (i) his then current annual Base Salary, (ii) the highest cash bonus payment paid to Employee over the past three
years, and (iii) the annual total automobile allowance paid to Employee, if any; provided, however, that in the event any payments provided
for hereunder, when combined with any other payments due to Employee under any other agreement or benefit plan of Employer contingent
upon a Change in Control, constitute an "excess parachute payment" under Section 280G of the Internal Revenue Code of 1986, as amended
or any successor thereto, the total payments will be reduced such that no portion of such payments are subject to the excise tax under
Section 4999 of the Code to the extent that, after all applicable taxes, the Employee retains more of the total payments after this reduction
than if the full amount were payable. Payments will be reduced in such manner as has the least economic effect on the Employee. In applying
these principles, any reduction or elimination of the Payments shall be made in a manner consistent with the requirements of Section 409A
of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall
be reduced on a pro rata basis but not below zero. Unless the Employer and the Employee otherwise agree in writing, any determination
required under this Section 7(c) shall be made in writing by a nationally-recognized accounting firm selected by the Employee (the “Accountants”),
whose determination will be conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making the calculations
required by this Section 7(c), the Accountants (i) may make reasonable assumptions and approximations concerning applicable taxes, (ii)
may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, and (iii) shall take
into account a “reasonable compensation” (within the meaning of Q&A-9 and Q&A-40 to Q&A 44 of the final regulations
under Section 280G of the Code) analysis of the value of services provided or to be provided by the Employee, including any agreement
by the Employee (if applicable) to refrain from performing services pursuant to a covenant not to compete or similar covenant applicable
to the Employee that may then be in effect (including, without limitation, those contemplated by Section 5 of this Agreement). The Employer
and the Employee agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order
to make a determination under this provision. The Employer shall bear all costs the Accountants may reasonably incur in connection with
any calculations contemplated by this provision. In addition to the foregoing, Employee shall be entitled to receive from Employer, or
its successor, hospital, health, medical and life insurance on the terms and at the cost to Employee as Employee was receiving such benefits
upon the date of his termination. Employer's obligation to continue such insurance benefits will be for a period of two (2) years from
the effective date of the Change in Control.


 


(d)         All
payments and benefits under paragraph (c) above shall be contingent upon Employee executing a general release of claims in favor
of the Employer, its subsidiaries and affiliates, and their respective officers, directors, shareholders, partners, members, managers,
agents or employees, which release shall be provided to the Employee within five (5) business days following the termination date,
and which must be executed by the Employee and become effective within thirty (30) days thereafter. Severance payments under paragraph
(c) that are contingent upon such release shall, subject to Section 14, commence within ten (10) days after such release
becomes effective; provided, however, that if Employee’s termination date occurs on or after November 15 of a calendar year,
then severance payments shall, subject to the effectiveness of such release and Section 14, commence on the first business day of
the following calendar year.


 


2.          No
Guaranty of Employment. Nothing in this Agreement shall be construed as guarantying the employment of the Employee. Employee shall
remain an “employee at will” of Employer at all time during the term of this Agreement.


 






    


     


    







 


3.           Notices.
Any and all notices, demands or requests required or permitted to be given under this Agreement shall be given in writing and sent, (i) by
registered or certified U.S. mail, return receipt requested, (ii) by hand, (iii) by overnight courier or (iv) by telecopier
addressed to the parties hereto at their addresses set forth above or such other addresses as they may from time-to-time designate by
written notice, given in accordance with the terms of this Section, together with copies thereof as follows:


 


In the case of Employee, to
the address set forth on the first page hereof or to such other address as Employee shall provide in writing to the Employer for
the provision of notices hereunder.


 


In the case of Employer, to
the address set forth on the first page hereof with a copy to:


 


Windels Marx Lane & Mittendorf, LLP 


120 Albany Street Plaza, 6th Floor 


New Brunswick, New Jersey 08901 


Telecopier No. (732) 846-8877 


Attention: Robert A. Schwartz


 


Notice given as provided in this Section shall
be deemed effective: (i) on the date hand delivered, (ii) on the first business day following the sending thereof by overnight
courier, (iii) on the seventh calendar day (or, if it is not a business day, then the next succeeding business day thereafter) after
the depositing thereof into the exclusive custody of the U.S. Postal Service or (iv) on the date telecopied.


 


4.           Term.
Unless extended by mutual agreement, this Agreement shall have a term of three (3)  years from the date hereof; provided, however,
that in the event the term of this Agreement would terminate at any time after the Employer has engaged in substantive negotiations regarding
a transaction which would lead to a Change in Control, this Agreement shall continue to remain in full force in effect until the earlier
to occur of (i) the effectuation of the Change in Control or (ii) the termination of the negotiations for the proposed transaction
which would have resulted in the Change in Control; further provided, however, that unless either party shall give written notice of its
intention not to renew this Agreement at least one hundred and eighty (180) days prior to the end of the term of this Agreement (as it
may be extended), this Agreement shall renew for an additional one (1) year term upon the conclusion of each term.


 






    


     


    

 


5.          Non-Solicitation.
During the period Employee is performing services for the Employer and for a period of one (1) year following the termination of
the Employee's services for the Employer for any reason, the Employee agrees that the Employee will not, directly or indirectly, for the
Employee's benefit or for the benefit of any other person, firm or entity, do any of the following:


 


		(a)	solicit or attempt to solicit from (i) any customer that Employee serviced or learned of while in
the employ of the Employer ("Customer"), (ii) referral sources or prospective referral
sources which are actively being sought by Employer at the time of Employee’s termination (a “Referral Source”), or
(iii) any potential customer of the Employer which has been the subject of a known written or oral bid, offer or proposal by the
Employer, or of substantial preparation with a view to making such a bid, proposal or offer, within twelve months prior to such Employee's
termination ("Potential Customer"), business of a similar nature or related to the business of the Employer;



 


		(b)	accept any business from, or perform any work or services for, any Customer, Referral Source or Potential
Customer, which business, work or services is similar to the business of the Employer;



 


		(c)	cause or induce or attempt to cause or induce any Customer, Referral Source, Potential Customer, licensor,
supplier or vendor of the Employer to reduce or sever its affiliation with the Employer;



 


		(d)	solicit the employment or services of, or hire or engage, or assist anyone else to hire or engage, any
person who was known to be employed or engaged by or was a known employee of or consultant to the Employer upon the termination of the
Employee's services to the Employer, or within twelve months prior thereto; or



 


		(e)	otherwise interfere with the business or accounts of the Employer.



 


For purposes hereof, "solicitation"
shall include directly or indirectly initiating any contact or communication of any kind whatsoever for purposes of inviting, encouraging
or requesting such Customer, Referral Source, Potential Customer, licensor, supplier, vendor, employee or consultant to materially alter
its business relationship, or engage in business, with the Employee or any person, firm or entity other than the Employer.


 


6.          Confidential
Information.


 


(a)        As
used herein, "Confidential Information" means any confidential or proprietary information relating to the Employer and its affiliates
including, without limitation, the identity of the Employer's customers, the identity of representatives of customers with whom the Employer
has dealt, the kinds of services provided by the Employer to customers, the manner in which such services are performed or offered to
be performed, the service needs of actual or prospective customers, customer preferences and policies, pricing information, business and
marketing plans, financial information, budgets, compensation or personnel records, information concerning the creation, acquisition or
disposition of products and services, vendors, software, data processing programs, databases, customer maintenance listings, computer
software applications, research and development data, know-how, and other trade secrets.


 






    


     


    

 


Notwithstanding the above,
Confidential Information does not include information which: (i) is or becomes public knowledge without breach of this Agreement;
or (ii) is received by Employee from a third party without any violation of any obligation of confidentiality and without confidentiality
restrictions; provided, however, that nothing in this Agreement shall prevent the Employee from participating in or disclosing documents
or information in connection with any judicial or administrative investigation, inquiry or proceeding to the extent that such participation
or disclosure is required under applicable law; provided further, however, that the Employee will provide the Employer with prompt notice
of such request so that the Employer may seek (with the cooperation of the Employee, if so requested by the Employer), a protective order
or other appropriate remedy and/or waiver in writing of compliance with the provisions of this Agreement. If a particular portion or aspect
of Confidential Information becomes subject to any of the foregoing exceptions, all other portions or aspects of such information shall
remain subject to all of the provisions of this Agreement.


 


(b)        At
all times, both during the period of Employee's services for the Employer and after termination of Employee's services, the Employee will
keep in strictest confidence and trust all Confidential Information and the Employee will not directly or indirectly use or disclose to
any third-party any Confidential Information, except as may be necessary in the ordinary course of performing the Employees duties for
the Employer, or disclose any Confidential Information, or permit or encourage any other person or entity to do so, without the prior
written consent of the Employer except as may be necessary in the ordinary course of performing the Employee's duties for the Employer.


 


(c)         The
Employee agrees to return promptly all Confidential Information in tangible form, including, without limitation, all photocopies, extracts
and summaries thereof, and any such information stored electronically on tapes, computer disks, mobile or remote computers (including
personal digital assistants) or in any other manner to the Employer at any time that the Employer makes such a request and automatically,
without request, within five days after the termination of the Employee's performance of services for the Employer for any reason.


 


7.          Assignability.
The services of the Employee hereunder are personal in nature, and neither this Agreement nor the rights or obligations of Employee hereunder
may be assigned, whether by operation of law or otherwise. This Agreement shall be binding upon, and inure to the benefit of, Employer
and its successors and assigns. This Agreement shall inure to the benefit of the Employee's heirs, executors, administrators and other
legal representatives.


 


8.          Waiver.
The waiver by Employer or the Employee of a breach of any provision of this Agreement by the other shall not operate or be construed as
a waiver of any subsequent or other breach hereof.


 






    


     


    

 


9.          Applicable
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect
to principles of conflict of laws.


 


10.         Entire
Agreement. This Agreement contains the entire agreement of the parties hereto with respect to the subject matter hereof and may not
be amended, waived, changed, modified or discharged, except by an agreement in writing signed by the parties hereto.


 


11.        Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which taken together
shall constitute one and the same instrument.


 


12.        Amendment.
This Agreement may be modified or amended only by an amendment in writing signed by both parties.


 


13.        Severability.
If any provision of this Agreement shall be held invalid or unenforceable, such invalidity or unenforceability shall attach only to such
provision, only to the extent it is invalid or unenforceable, and shall not in any manner affect or render invalid or unenforceable any
other severable provision of this Agreement, and this Agreement shall be carried out as if any such invalid or unenforceable provision
were not contained herein.


 


14.        Section Headings.
The headings contained in this Agreement are solely for convenience of reference and shall be given no effect in the construction or interpretation
of this Agreement.


 


15.        Section 409A.
This Agreement shall be interpreted to avoid any penalty sanctions under Section 409A of the Code (“Section 409A”)
and regulations promulgated thereunder. Notwithstanding anything contained herein to the contrary, the Employee shall not be considered
to have terminated employment with the Employer for purposes of the payments and benefit of Section 1 hereof unless he would be considered
to have incurred a “termination of employment” from the Employer within the meaning of Treasury Regulation §1.409A-1(h)(1)(ii).
For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment. In no event may the
Employee, directly or indirectly, designate the calendar year of payment. Notwithstanding the foregoing, if necessary to comply with the
restriction in Section 409A(a)(2)(B) of the Code concerning payments to “specified employees”, any payment as a
result of the termination of the Employee’s employment that would otherwise be due hereunder within six months after such termination
of employment shall nonetheless be delayed until the first business day of the seventh month following the Employee’s date of termination
and the first such payment shall include the cumulative amount of any payments that would have been paid prior to such date if not for
such restriction.


 


16.        Arbitration.
Any dispute or controversy arising under 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 Employer
and the Employee, sitting in New York County, New York, unless otherwise mutually agreed by the Employer and the Employee, 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. Notwithstanding the forgoing, the
parties to this Agreement may seek equitable relief in any court or competent jurisdiction for a matter in the nature of, but not limited
to, restraining orders or injunctions.


 






    


     


    

 


17.         Clawback.
With regard to any payment made hereunder, Employer or its successors retains the legal right to demand the return of any payment made
should Employer or its successors later obtain information indicating that the Employee has committed, is substantially responsible for,
or has violated, the respective acts or omissions, conditions, or offenses outlined under the FDIC's regulations at 12 C.F.R. 359.4(a)(4).


 


IN WITNESS WHEREOF,
the parties hereto have executed this Agreement under their respective hands and seals as of the day and year first above written.


 





	ATTEST: 	HANOVER COMMUNITY BANK
	 	 
	 	By:	/s/ Brian K. Finneran
	 	 	     Brian K. Finneran
	 		     President & CFO



 





	WITNESS:	EMPLOYEE:
	 	 
	 	/s/ Lance P. Burke
	 	Name: Lance P. Burke