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EXHIBIT 10.32
ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT WITH EXECUTIVE OFFICER
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
made and entered into as of January 1, 2000 by and between ASTORIA FEDERAL
SAVINGS AND LOAN ASSOCIATION, a savings association organized and operating
under the federal laws of the United States and having an office at Xxx Xxxxxxx
Xxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxx Xxxx 00000-0000 (the "Association") and, XXXX
X. XXXXXXXXX, an individual residing at 00 Xxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxx
00000 (the "Executive").
WITNESSETH:
WHEREAS, the Executive currently serves the Association in the capacity
of Executive Vice President and General Counsel and as Executive Vice President
and General Counsel of the Association's savings and loan holding company,
ASTORIA FINANCIAL CORPORATION, a publicly held business corporation organized
and operating pursuant to the laws of the State of Delaware (the "Company"); and
WHEREAS, the Executive currently has an Employment Agreement with the
Association dated January 1, 1996 which the Executive and the Association wish
to amend and modify; and
WHEREAS, the Association desires to assure for itself the continued
availability of the Executive's services and the ability of the Executive to
perform such services with a minimum of personal distraction in the event of a
pending or threatened Change of Control (as hereinafter defined); and
WHEREAS, the Executive is willing to continue to serve the Association
on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions hereinafter set forth, the Association and the
Executive hereby amend and restate in its entirety the Employment Agreement by
and between the Association and the Executive dated as of January 1, 1996 so as
to provide as follows from and after the date hereof:
Section 1. Employment.
The Association agrees to continue to employ the Executive, and the
Executive hereby agrees to such continued employment, during the period and upon
the terms and conditions set forth in this Agreement.
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Section 2. Employment Period; Remaining Unexpired Employment Period.
(a) The terms and conditions of this Agreement shall be and remain
in effect during the period of employment established under
this Section 2 (the "Employment Period"). The Employment
Period shall be for an initial term of three years beginning
on the date of this Agreement and ending on the day before the
third anniversary date of this Agreement. Prior to the first
anniversary of the date of this Agreement and on each
anniversary date thereafter (each an "Anniversary Date) the
Board of Directors of the Association (the "Board") shall
review the terms of this Agreement and the Executive's
performance of services hereunder and may, in the absence of
objection from the Executive, approve an extension of the
Employment Period. In such event, the Employment Period shall
be extended to the day before the third anniversary of the
relevant Anniversary Date.
(b) For all purposes of this Agreement, the term "Remaining
Unexpired Employment Period" as of any date shall mean the
period beginning on such date and ending on the day before the
Anniversary Date on which the Employment Period (as extended
pursuant to Section 2(a) of this Agreement) is then scheduled
to expire.
(c) Nothing in this Agreement shall be deemed to prohibit the
Association from terminating the Executive's employment at any
time during the Employment Period with or without notice for
any reason; provided, however, that the relative rights and
obligations of the Association and the Executive in the event
of any such termination shall be determined pursuant to this
Agreement.
Section 3. Duties.
The Executive shall serve as Executive Vice President and General
Counsel of the Association, having such power, authority and responsibility and
performing such duties as are prescribed by or pursuant to the By-Laws of the
Association and as are customarily associated with such position. The Executive
shall devote his or her full business time and attention (other than during
weekends, holidays, approved vacation periods, and periods of illness or
approved leaves of absence) to the business and affairs of the Association and
shall use his or her best efforts to advance the interests of the Association.
Section 4. Cash Compensation.
In consideration for the services to be rendered by the Executive
hereunder, the Association shall pay to him or her a salary at an initial annual
rate of TWO HUNDRED SEVENTY FIVE THOUSAND DOLLARS ($275,000), payable in
approximately equal installments in accordance with the Association's customary
payroll practices for senior officers. Prior to each Anniversary Date occurring
during the Employment Period, the Board shall review the Executive's annual rate
of
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salary and may, in its discretion, approve an increase therein. In addition to
salary, the Executive may receive other cash compensation from the Association
for services hereunder at such times, in such amounts and on such terms and
conditions as the Board may determine from time to time.
Section 5. Employee Benefit Plans and Programs.
During the Employment Period, the Executive shall be treated as an
employee of the Association and shall be entitled to participate in and receive
benefits under any and all qualified or non-qualified retirement, pension,
savings, profit-sharing or stock bonus plans, any and all group life, health
(including hospitalization, medical and major medical), dental, accident and
long term disability insurance plans, and any other employee benefit and
compensation plans (including, but not limited to, any incentive compensation
plans or programs, stock option and appreciation rights plans and restricted
stock plans) as may from time to time be maintained by, or cover employees of,
the Association, in accordance with the terms and conditions of such employee
benefit plans and programs and compensation plans and programs and consistent
with the Association's customary practices.
Section 6. Indemnification and Insurance.
(a) During the Employment Period and for a period of six (6) years
thereafter, the Association shall cause the Executive to be
covered by and named as an insured under any policy or
contract of insurance obtained by it to insure its directors
and officers against personal liability for acts or omissions
in connection with service as an officer or director of the
Association or service in other capacities at the request of
the Association. The coverage provided to the Executive
pursuant to this Section 6 shall be of the same scope and on
the same terms and conditions as the coverage (if any)
provided to other officers or directors of the Association.
(b) To the maximum extent permitted under applicable law, during
the Employment Period and for a period of six (6) years
thereafter, the Association shall indemnify the Executive
against, and hold him or her harmless from any costs,
liabilities, losses and exposures to the fullest extent and on
the most favorable terms and conditions that similar
indemnification is offered to any director or officer of the
Association or any subsidiary or affiliate thereof. This
Section 6(b) shall not be applicable where Section 18 is
applicable.
Section 7. Other Activities.
(a) The Executive may serve as a member of the boards of directors
of such business, community and charitable organizations as he
or she may disclose to and as may be approved by the Board
(which approval shall not be unreasonably withheld); provided,
however, that such service shall not materially interfere with
the performance of his or her duties under this Agreement. The
Executive may also
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engage in personal business and investment activities which do
not materially interfere with the performance of his or her
duties hereunder; provided, however, that such activities are
not prohibited under any code of conduct or investment or
securities trading policy established by the Association and
generally applicable to all similarly situated executives.
(b) The Executive may also serve as an officer or director of the
Company on such terms and conditions as the Association and
the Company may mutually agree upon, and such service shall
not be deemed to materially interfere with the Executive's
performance of his or her duties hereunder or otherwise result
in a material breach of this Agreement.
Section 8. Working Facilities and Expenses.
The Executive's principal place of employment shall be at the
Association's executive offices at the address first above written, or at such
other location within Queens County or Nassau County, New York at which the
Association shall maintain its principal executive offices, or at such other
location as the Association and the Executive may mutually agree upon. The
Association shall provide the Executive at his or her principal place of
employment with a private office, secretarial services and other support
services and facilities suitable to his or her position with the Association and
necessary or appropriate in connection with the performance of his or her
assigned duties under this Agreement. The Association shall provide to the
Executive for his or her exclusive use an automobile owned or leased by the
Association and appropriate to his or her position, to be used in the
performance of his or her duties hereunder, including commuting to and from his
or her personal residence. The Association shall reimburse the Executive for his
or her ordinary and necessary business expenses, including, without limitation,
all expenses associated with his or her business use of the aforementioned
automobile, fees for memberships in such clubs and organizations as the
Executive and the Association shall mutually agree are necessary and appropriate
for business purposes, and his or her travel and entertainment expenses incurred
in connection with the performance of his or her duties under this Agreement, in
each case upon presentation to the Association of an itemized account of such
expenses in such form as the Association may reasonably require.
Section 9. Termination of Employment with Severance Benefits.
(a) The Executive shall be entitled to the severance benefits
described herein in the event that his or her employment with
the Association terminates during the Employment Period under
any of the following circumstances:
(i) the Executive's voluntary resignation from employment
with the Association within six (6) months following:
(A) the failure of the Board to appoint or
re-appoint or elect or re-elect the
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Executive to the office of Executive Vice
President and General Counsel (or a more
senior office) of the Association;
(B) if the Executive is or becomes a member of
the Board, the failure of the stockholders
of the Association to elect or re-elect the
Executive to the Board or the failure of the
Board (or the nominating committee thereof)
to nominate the Executive for such election
or re-election;
(C) the expiration of a thirty (30) day period
following the date on which the Executive
gives written notice to the Association of
its material failure, whether by amendment
of the Association's Organization
Certificate or By-laws, action of the Board
or the Association's stockholders or
otherwise, to vest in the Executive the
functions, duties, or responsibilities
prescribed in Section 3 of this Agreement as
of the date hereof, unless, during such
thirty (30) day period, the Association
cures such failure;
(D) the expiration of a thirty (30) day period
following the date on which the Executive
gives written notice to the Association of
its material breach of any term, condition
or covenant contained in this Agreement
(including, without limitation, any
reduction of the Executive's rate of base
salary in effect from time to time and any
change in the terms and conditions of any
compensation or benefit program in which the
Executive participates which, either
individually or together with other changes,
has a material adverse effect on the
aggregate value of his or her total
compensation package), unless, during such
thirty (30) day period, the Association
cures such failure; or
(E) the relocation of the Executive's principal
place of employment, without his or her
written consent, to a location outside of
Nassau County and Queens County, New York;
(ii) the termination of the Executive's employment with
the Association for any other reason not described in
Section 10(a).
In such event and subject to Section 27 of this Agreement, the
Association shall provide the benefits and pay to the
Executive the amounts described in Section 9(b).
(b) Upon the termination of the Executive's employment with the
Association under circumstances described in Section 9(a) of
this Agreement, the Association shall pay and provide to the
Executive (or, in the event of the Executive's death following
the Executive's termination of employment, to his or her
estate):
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(i) his or her earned but unpaid compensation (including,
without limitation, all items which constitute wages
under Section 190.1 of the New York Labor Law and the
payment of which is not otherwise provided for under
this Section 9(b)) as of the date of the termination
of his or her employment with the Association, such
payment to be made at the time and in the manner
prescribed by law applicable to the payment of wages
but in any event not later than thirty (30) days
after termination of employment;
(ii) the benefits, if any, to which he or she is entitled
as a former employee under the employee benefit plans
and programs and compensation plans and programs
maintained for the benefit of the Association's
officers and employees;
(iii) continued group life, health (including
hospitalization, medical and major medical), dental,
accident and long term disability insurance benefits,
in addition to that provided pursuant to Section
9(b)(ii), and after taking into account the coverage
provided by any subsequent employer, if and to the
extent necessary to provide for the Executive, for
the Remaining Unexpired Employment Period, coverage
(including any co-payments and deductibles, but
excluding any premium sharing arrangements, it being
the intention of the parties to this Agreement that
the premiums for such insurance benefits shall be the
sole cost and expense of the Association) equivalent
to the coverage to which he or she would have been
entitled under such plans (as in effect on the date
of his or her termination of employment, or, if his
or her termination of employment occurs after a
Change of Control, on the date of such Change of
Control, whichever benefits are greater), if he or
she had continued working for the Association during
the Remaining Unexpired Employment Period at the
highest annual rate of salary or compensation, as
applicable, achieved during that portion of the
Employment Period which is prior to the Executive's
termination of employment with the Association;
(iv) within thirty (30) days following the Executive's
termination of employment with the Association, a
lump sum payment in an amount representing an
estimate of the salary that the Executive would have
earned if he or she had continued working for the
Association during the Remaining Unexpired Employment
Period at the highest annual rate of salary achieved
during that portion of the Employment Period which is
prior to the Executive's termination of employment
with the Association (the "Salary Severance
Payment"). The Salary Severance Payment shall be
computed using the following formula:
SSP = BS x NY
where:
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"SSP" is the amount of the Salary Severance Payment,
before the deduction of applicable federal, state and
local withholding taxes;
"BS" is the highest annual rate of salary achieved
during that portion of the Employment Period which is
prior to the Executive's termination of employment
with the Association;
"NY" is the Remaining Unexpired Employment Period
expressed as a number of years (rounded, if such
period is not a whole number, to the next highest
whole number).
The Salary Severance Payment shall be paid in lieu of
all other payments of salary provided for under this
Agreement in respect of the period following any such
termination.
(v) within thirty (30) days following the Executive's
termination of employment with the Association, a
lump sum payment (the "XX Xxxxxxxxx Payment") in an
amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits
to which he or she would be entitled under
any and all qualified and non-qualified
defined benefit pension plans maintained by,
or covering employees of, the Association,
if he or she were 100% vested thereunder and
had continued working for the Association
during the Remaining Unexpired Employment
Period, such benefits to be determined as of
the date of termination of employment by
adding to the service actually recognized
under such plans an additional period equal
to the Remaining Unexpired Employment Period
and by adding to the compensation recognized
under such plans for the most recent year
recognized all amounts payable pursuant to
Sections 9(b)(i), (iv), (vii), (viii) and
(ix) of this Agreement; over
(B) the present value of the benefits to which
he or she is actually entitled under such
defined benefit pension plans as of the date
of his or her termination;
The XX Xxxxxxxxx Payment shall be computed using the
following formula:
DBSP = SEVLS - LS
where:
"DBSP" is the amount of the XX Xxxxxxxxx Payment,
before the deduction
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of applicable federal, state and local withholding
taxes;
"SEVLS" is the sum of the present value of the
defined benefit pension benefits that have been or
would be accrued by the Executive under all qualified
and non-qualified defined benefit pension plans of
which the Association or any of its affiliates or
subsidiaries are a sponsor and in which the Executive
is or, but for the completion of any service
requirement that would have been completed during the
Remaining Unexpired Employment Period, would be a
participant utilizing the following assumptions:
(I) the executive is 100% vested in the
plans regardless of actual service,
(II) the benefit to be valued shall be a
single life annuity with monthly
payments due on the first day of
each month and with a guaranteed
payout of not less than 120 monthly
payments,
(III) the calculation shall be made
utilizing the same mortality table
and interest rate as would be
utilized by the plan on the date of
termination as if the calculation
were being made pursuant to Section
417(e)(3)(A)(ii) of the Internal
Revenue Code, as amended, (the
"Code");
(IV) for purpose of calculating the
Executive's monthly or annual
benefit under the defined benefit
plans, additional service equal to
the Remaining Unexpired Employment
Period (rounded up to the next whole
year if such period is not a whole
number when expressed in years)
shall be added to the Executive's
actual service to calculate the
amount of the benefit; and
(V) for purpose of calculating the
Executive's monthly or annual
benefit under the defined benefit
plans, the following sums shall be
added to the Executive's
compensation recognized under such
plans for the most recent year
recognized:
(1) payments made pursuant to
Section 9(b)(i);
(2) the Salary Severance Payment;
(3) the Bonus Severance Payment;
(4) the Option Surrender Payment;
and
(5) the RRP Surrender Payment.
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"LS" is the sum of the present value of the defined
benefit pension benefits that are vested benefits
actually accrued by the Executive under all qualified
and non-qualified defined benefit pension plans
maintained by, or covering employees of, the Company
or any of its affiliates or subsidiaries in which the
Executive is or, but for the completion of any
service requirement, would be a participant utilizing
the following assumptions:
(I) the benefit to be valued shall be a
single life annuity with monthly
payments due on the first day of
each month and with a guaranteed
payout of not less than 120 monthly
payments, and
(II) the calculation shall be made
utilizing the same mortality table
and interest rate as would be
utilized by the plan on the date of
termination as if the calculation
were being made pursuant to Section
417(e)(3)(A)(ii) of the Code;
(vi) within thirty (30) days following the Executive's
termination of employment with the Association, a
lump sum payment (the "Defined Contribution Severance
Payment") equal to the sum of:
(A) an estimate of the additional employer
contributions to which he or she would have
been entitled under any and all qualified
and non- qualified defined contribution
pension plans, excluding the employee stock
ownership plans, maintained by, or covering
employees of, the Association or any of its
affiliates or subsidiaries as if he or she
were 100% vested thereunder and had
continued working for the Association during
the Remaining Unexpired Employment Period
(the "401K Severance Payment"); and
(B) an estimate of the value of the additional
assets which would have been allocable to
him or her through debt service or otherwise
under any and all qualified and
non-qualified employee stock ownership
plans, maintained by, or covering employees
of the Association or any of its affiliates
or subsidiaries as if he or she were 100%
vested thereunder and had continued working
for the Association during the Remaining
Unexpired Employment Period, based on the
fair market value of such assets at
termination of employment (the "ESOP
Severance Payment").
The Defined Contribution Severance Payment shall be
calculated as follows:
DCSP = 401KSP + ESOPSP
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where:
"DCSP" is the amount of the Defined Contribution
Severance Payment, before the deduction of applicable
federal, state and local withholding taxes;
"401KSP" is the amount of the 401K Severance Payment,
before the deduction of applicable federal, state and
local withholding taxes; and
"ESOPSP" is the amount of the ESOP Severance Payment,
before the deduction of applicable federal, state and
local withholding taxes.
The 401KSP shall be calculated as follows:
401SP = (401KC x NY) + UVB
where
"401KC" is the sum of the Association Contributions
as defined in the Association's Incentive Savings
Plan or, if made under another defined contribution
pension plan other than an employee stock ownership
plan, the comparable contribution made for the
benefit of the Executive during the one year period
which shall end on the date of his or her termination
of his or her employment with the Association;
"NY" is the Remaining Unexpired Employment Period
expressed as a number of years (rounded, if such
period is not a whole number, to the next highest
whole number); and
"UVB" is the actual balance credited to the
Executive's account under the applicable plan at the
date of his or her termination of employment that is
not vested and does not become vested as a
consequence of such termination of employment.
The ESOPSP shall be calculated as follows:
ESOPSP = (((ALL x FMV) + C) x NY) + UVB
where:
"ALL" is the sum of the number of shares of the
Association's common stock or, if applicable, phantom
shares of such stock by whatever term it is described
allocated to the Executive's accounts under all
qualified and non-
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qualified employee stock ownership plans maintained
by the Association or any of its affiliates or
subsidiaries during or for the last complete plan
year in which the Executive participated in such
plans and received such an allocation whether the
allocation occurred as a result of contributions made
by the Association, the payment by the Association or
any of its affiliates or subsidiaries of any loan
payments under a leveraged employee stock ownership
plan, the allocation of forfeitures under the terms
of such plan or as a result of the use of cash or
earnings allocated to the Executives account during
such plan year to make loan payments that result in
share allocations, provided however, that excluded
shall be any shares or phantom shares allocated to
the Executive's account under any qualified and
non-qualified employee stock ownership plans
maintained by the Association or any of its
affiliates or subsidiaries solely as a result of the
termination of such plans, provided further, that if
the shares allocated are not shares of the
Association's common stock or phantom shares of such
stock than shares of whatever securities are so
allocated shall be utilized, and provided further,
that in the event that there shall be any shares or
phantom shares allocated during the then current plan
year or the last complete plan year to the
Executive's account under any qualified and
non-qualified employee stock ownership plans
maintained by the Association or any of its
affiliates or subsidiaries solely as a result of the
termination of such plans, the ALL shall be reduced
(but not to an amount less than zero (0)) by an
amount calculated by multiplying the number of shares
or phantom shares allocated to the Executive's
account solely as a result of the termination of such
plans times the FMV utilized to calculate the ESOPSP;
"C" is the sum of all cash allocated to the
Executive's accounts under all qualified and
non-qualified employee stock ownership plans
maintained by the Association during or for the last
complete plan year in which the Executive
participated in such plans whether the allocation
occurred as a result of contributions made by the
Association, the payment by the Association or the
Association of any loan payments under a leveraged
employee stock ownership plan or the allocation of
forfeitures under the terms of such plan during such
plan year;
"FMV" is the closing price of the Association's
common stock on The Nasdaq Stock Market or on
whatever other stock exchange or market such stock is
publicly traded on the date the Executive's
employment terminates or, if such day is not a day on
which such securities are traded, on the most recent
preceding trading day on which a trade occurs,
provided however that if the security allocated to
the Executive's account during the last completed
plan year is other than the Association's common
stock the closing price of such security on the date
the Executive's employment terminates shall be
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utilized;
"NY" is the Remaining Unexpired Employment Period
expressed as a number of years (rounded, if such
period is not a whole number, to the next highest
whole number); and
"UVB" is the actual balance credited to the
Executive's account under the applicable plan at the
date of his or her termination of employment that is
not vested and does not become vested as a
consequence of such termination of employment.
(vii) within thirty (30) days following the Executive's
termination of employment with the Association, the
Association shall make a lump sum payment to the
Executive in an amount equal to the estimated
potential annual bonuses or incentive compensation
that the Executive could have earned if the Executive
had continued working for the Association during the
Unexpired Employment Period at the highest annual
rate of salary achieved during that portion of the
Employment Period which is prior to the Executive's
termination of employment with the Association (the
"Bonus Severance Payment"). The Bonus Severance
Payment shall be computed using the following
formula:
BSP = (BS x TIO x AP x NY)
where:
"BSP" is the amount of the Bonus Severance Payment,
before the deduction of applicable federal, state and
local withholding taxes;
"BS" is the highest annual rate of salary achieved
during that portion of the Employment Period which is
prior to the Executive's termination of employment
with the Association;
"TIO" is the highest target incentive opportunity
(expressed as a percentage of base salary)
established by the Compensation Committee of the
Board for the Executive pursuant to the Astoria
Financial Corporation Executive Officer Annual
Incentive Plan during that portion of the Employment
Period which is prior to the Executive's termination
of employment with the Association;
"AP" is the highest award percentage available to the
Executive with respect to the financial performance
of the Company (expressed as a percentage of the TIO)
established by the Compensation Committee of the
Board for the
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Executive pursuant to the Astoria Financial
Corporation Executive Officer Annual Incentive Plan
during the period during that portion of the
Employment Period which is prior to the Executive's
termination of employment with the Association; and
"NY" is the Remaining Unexpired Employment Period
expressed as a number of years (rounded, if such
period is not a whole number, to the next highest
whole number).
(viii) at the election of the Association made within thirty
(30) days following the Executive's termination of
employment with the Association, upon the surrender
of options or appreciation rights issued to the
Executive under any stock option and appreciation
rights plan or program maintained by, or covering
employees of, the Association, a lump sum payment
(the "Option Surrender Payment"). The Option
Surrender Payment shall be calculated as follows:
OSP = (FMV - EP) x N
where:
"OSP" is the amount of the Option Surrender Payment,
before the deduction of applicable federal, state and
local withholding taxes;
"FMV" is the closing price of the Association's
common stock on The Nasdaq Stock Market, or on
whatever other stock exchange or market such stock is
publicly traded, on the date the Executive's
employment terminates or, if such day is not a day on
which such securities are traded, on the most recent
preceding trading day on which a trade occurs,
provided however that if the option or stock
appreciation right is for a security other than the
Association's common stock, the fair market value of
a share of stock of the same class as the stock
subject to the option or appreciation right,
determined as of the date of termination of
employment shall be utilized;
"EP" is the exercise price per share for such option
or appreciation right, as specified in or under the
relevant plan or program; and
"N" is the number of shares with respect to which
options or appreciation rights are being surrendered.
For purposes of determining the Option Severance
Payment and for purposes of determining the
Executive's right following his or her termination of
employment with the Association to exercise any
options or appreciation
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rights not surrendered pursuant hereto, the Executive
shall be deemed fully vested in all options and
appreciation rights under any stock option or
appreciation rights plan or program maintained by, or
covering employees of, the Association, even if he or
she is not vested under such plan or program;
(ix) at the election of the Association made within thirty
(30) days following the Executive's termination of
employment with the Association, upon the surrender
of any shares awarded to the Executive under any
restricted stock plan maintained by, or covering
employees of, the Association, a lump sum payment
(the "RRP Surrender Payment") The RRP Surrender
Payment shall be calculated as follows:
RSP = FMV x N
where:
"RSP" is the amount of the RRP Surrender Payment,
before the deduction of applicable federal, state and
local withholding taxes;
"FMV" is the closing price of the Association's
common stock on The Nasdaq Stock Market, or on
whatever other stock exchange or market such stock is
publicly traded, on the date the Executive's
employment terminates or, if such day is not a day on
which such securities are traded, on the most recent
preceding trading day on which a trade occurs,
provided however that if the restricted stock is a
security other than the Association's common stock,
the fair market value of a share of stock of the same
class as the stock granted under such plan,
determined as of the date of termination of
employment shall be utilized; and
"N" is the number of shares which are being
surrendered.
For purposes of determining the RRP Surrender Payment
and for purposes of determining the Executive's right
following his or her termination of employment with
the Association to any stock not surrendered pursuant
hereto, the Executive shall be deemed fully vested in
all shares awarded under any restricted stock plan
maintained by, or covering employees of, the
Association, even if he or she is not vested under
such plan.
The Salary Severance Payment, the XX Xxxxxxxxx Payment, the
Defined Contribution Severance Payment, the Bonus Severance
Payment, the Option Surrender Payment and the RRP Surrender
Payment shall be computed at the expense of the Association by
an attorney of the firm of Xxxxxxx Xxxxxxxx & Xxxx, Two World
Trade Center, New York, New York 10048 or, if such firm is
unavailable
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or unwilling to perform such calculation, by a firm of
independent certified public accountants selected by the
Executive and reasonably satisfactory to the Association (the
"Computation Advisor"). The determination of the Computation
Advisor as to the amount of such payments shall be final and
binding in the absence of manifest error.
The Association and the Executive hereby stipulate that the
damages which may be incurred by the Executive following any
such termination of employment are not capable of accurate
measurement as of the date first above written and that the
payments and benefits contemplated by this Section 9(b)
constitute reasonable damages under the circumstances and
shall be payable without any requirement of proof of actual
damage and without regard to the Executive's efforts, if any,
to mitigate damages. The Association and the Executive further
agree that the Association may condition the payment of the
Salary Severance Payment, the XX Xxxxxxxxx Payment, the
Defined Contribution Severance Payment, the Bonus Severance
Payment, the Option Surrender Payment and the RRP Surrender
Payment on the receipt of the Executive's resignation from any
and all positions which he or she holds as an officer,
director or committee member with respect to the Association,
the Association or any subsidiary or affiliate of either of
them.
Section 10. Termination without Additional Association Liability.
(a) In the event that the Executive's employment with the
Association shall terminate during the Employment Period on
account of:
(i) the discharge of the Executive for Cause, which, for
purposes of this Agreement shall mean personal
dishonesty, incompetence, wilful misconduct, breach
of fiduciary duty involving personal profit,
intentional failure to perform stated duties, wilful
violation of any law, rule or regulation (other than
traffic violations or similar offenses) or final
cease and desist order, or any material breach of
this Agreement, in each case measured against
standards generally prevailing at the relevant time
in the savings and community banking industry;
(ii) the Executive's voluntary resignation from employment
with the Association for reasons other than those
specified in Section 9(a) or 11(b);
(iii) the Executive's death;
(iv) a determination that the Executive is Disabled;
(v) the Executive's termination of employment for any
reason at or after attainment of mandatory retirement
age under the Association's mandatory
Page 15 of 29
16
retirement policy for executive officers in effect as
of the date of this Agreement;
then the Association, except as otherwise specifically
provided herein, shall have no further obligations under this
Agreement, other than the payment to the Executive (or, in the
event of his or her death, to his or her estate) of the
amounts or benefits provided in Section 9(b)(i) and (ii) of
this Agreement (the "Standard Termination Entitlements").
(b) The cessation of employment of the Executive shall not be
deemed to be for Cause within the meaning of Section 10(a)(i)
unless and until:
(i) the Board, by the affirmative vote of 75% of its
entire membership, determines that the Executive is
guilty of the conduct described in Section 10(a)(i)
above measured against standards generally prevailing
at the relevant time in the savings and community
banking industry;
(ii) prior to the vote contemplated by Section 10(b)(i),
the Board shall provide the Executive with notice of
the Association's intent to discharge the Executive
for Cause, detailing with particularity the facts and
circumstances which are alleged to constitute Cause
(the "Notice of Intent to Discharge"); and
(iii) after the giving of the Notice of Intent to Discharge
and before the taking of the vote contemplated by
Section 10(b)(i), the Executive, together with the
Executive's legal counsel, if the Executive so
desires, are afforded a reasonable opportunity to
make both written and oral presentations before the
Board for the purpose of refuting the alleged grounds
for Cause for the Executive's discharge; and
(iv) after the vote contemplated by Section 10(b)(i), the
Association has furnished to the Executive a notice
of termination which shall specify the effective date
of the Executive's termination of employment (which
shall in no event be earlier than the date on which
such notice is deemed given) and include a copy of a
resolution or resolutions adopted by the Board,
certified by its corporate secretary, authorizing the
termination of the Executive's employment with Cause
and stating with particularity the facts and
circumstances found to constitute Cause for the
Executive's discharge (the "Final Discharge Notice").
If the Executive, during the ninety (90) day period commencing
on the delivery by the Association to the Executive of the
Notice of Intent to Discharge specified in Section 10(b)(ii),
resigns his or her employment with the Association prior to
the
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17
delivery to the Executive by the Association of the Final
Discharge Notice specified in Section 10(b)(iv), then the
cessation of employment of the Executive shall be deemed to be
for Cause.
Following the giving of a Notice of Intent to Discharge, the
Bank may temporarily suspend the Executive's duties and
authority and, in such event, may also suspend the payment of
salary and other cash compensation, but not the Executive's
participation in retirement, insurance and other employee
benefit plans. If the Executive is not discharged or is
discharged without Cause within forty-five (45) days after the
giving of a Notice of Intent to Discharge, payments of salary
and cash compensation shall resume, and all payments withheld
during the period of suspension shall be promptly restored. If
the Executive is discharged with Cause not later than
forty-five (45) days after the giving of the Notice of Intent
to Discharge, all payments withheld during the period of
suspension shall be deemed forfeited and shall not be included
in the Standard Termination Entitlements. If a Final Discharge
Notice is given later than forty-five (45) days, but sooner
than ninety (90) days, after the giving of the Notice of
Intent to Discharge, all payments made to the Executive during
the period beginning with the giving of the Notice of Intent
to Discharge and ending with the Executive's discharge with
Cause shall be retained by the Executive and shall not be
applied to offset the Standard Termination Entitlements. If
the Bank does not give a Final Discharge Notice to the
Executive within ninety (90) days after giving a Notice of
Intent to Discharge, the Notice of Intent to Discharge shall
be deemed withdrawn and any future action to discharge the
Executive with Cause shall require the giving of a new Notice
of Intent to Discharge. If the Executive resigns pursuant to
Section 10(b), the Executive shall forfeit his or her right to
suspended amounts that have not been restored as of the date
of the Executive's resignation or notice of resignation,
whichever is earlier.
(c) The Association may terminate the Executive's employment on
the basis that the Executive is Disabled during the Employment
Period upon a determination by the Board, by the affirmative
vote of 75% of its entire membership, acting in reliance on
the written advice of a medical professional acceptable to it,
that the Executive is suffering from a physical or mental
impairment which, at the date of the determination, has
prevented the Executive from performing the Executive's
assigned duties on a substantially full-time basis for a
period of at least one hundred and eighty (180) days during
the period of one (1) year ending with the date of the
determination or is likely to result in death or prevent the
Executive from performing the Executive's assigned duties on a
substantially full-time basis for a period of at least one
hundred and eighty (180) days during the period of one (1)
year beginning with the date of the determination. In such
event:
(A) The Association shall pay and provide the
Standard Termination Entitlements to the
Executive;
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18
(B) In addition to the Standard Termination
Entitlements, the Association shall continue
to pay to the Executive the Executive's base
salary, at the annual rate in effect for the
Executive immediately prior to the
termination of the Executive's employment,
during a period ending on the earliest of:
(I) the expiration of one hundred and
eighty (180) days after the date of
termination of the Executive's
employment;
(II) the date on which long-term
disability insurance benefits are
first payable to the Executive under
any long-term disability insurance
plan covering the Executive; or
(III) the date of the Executive's death.
A termination of employment due to Disability under
this Section shall be effected by a notice of
termination given to the Executive by the Association
and shall take effect on the later of the effective
date of termination specified in such notice or, if
no such date is specified, the date on which the
notice of termination is deemed given to the
Executive.
Section 11. Termination Upon or Following a Change of Control.
(a) A Change of Control of the Association ("Change of Control")
shall be deemed to have occurred upon the happening of any of
the following events:
(i) approval by the stockholders of the Association of a
transaction that would result in the reorganization,
merger or consolidation of the Association with one
or more other persons, other than a transaction
following which:
(A) at least 51% of the equity ownership
interests of the entity resulting from such
transaction are beneficially owned (within
the meaning of Rule 13d-3 promulgated under
the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) in
substantially the same relative proportions
by persons who, immediately prior to such
transaction, beneficially owned (within the
meaning of Rule 13d-3 promulgated under the
Exchange Act) at least 51% of the
outstanding equity ownership interests in
the Association; and
(B) at least 51% of the securities entitled to
vote generally in the election of directors
of the entity resulting from such
transaction are beneficially owned (within
the meaning of Rule 13d-3 promulgated
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under the Exchange Act) in substantially the
same relative proportions by persons who,
immediately prior to such transaction,
beneficially owned (within the meaning of
Rule 13d-3 promulgated under the Exchange
Act) at least 51 % of the securities
entitled to vote generally in the election
of directors of the Association;
(ii) the acquisition of all or substantially all of the
assets of the Association or beneficial ownership
(within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 20% or more of the outstanding
securities of the Association entitled to vote
generally in the election of directors by any person
or by any persons acting in concert, or approval by
the stockholders of the Association of any
transaction which would result in such an
acquisition;
(iii) a complete liquidation or dissolution of the
Association, or approval by the stockholders of the
Association of a plan for such liquidation or
dissolution;
(iv) the occurrence of any event if, immediately following
such event, at least 50% of the members of the Board
do not belong to any of the following groups:
(A) individuals who were members of the Board on
the date of this Agreement; or
(B) individuals who first became members of the
Board after the date of this Agreement
either:
(I) upon election to serve as a member
of the Board by affirmative vote of
three-quarters of the members of
such Board, or of a nominating
committee thereof, in office at the
time of such first election; or
(II) upon election by the stockholders of
the Association to serve as a member
of the Board, but only if nominated
for election by affirmative vote of
three-quarters of the members of the
Board, or of a nominating committee
thereof, in office at the time of
such first nomination;
provided, however, that such individual's
election or nomination did not result from
an actual or threatened election contest
(within the meaning of Rule 14a-11 of
Regulation 14A promulgated under the
Exchange Act) or other actual or threatened
solicitation of proxies or consents (within
the meaning of Rule 14a-11 of Regulation 14A
Page 19 of 29
20
promulgated under the Exchange Act) other
than by or on behalf of the Board; or
(v) any event which would be described in Section
11(a)(i), (ii), (iii) or (iv) if the term "Company"
were substituted for the term "Association" therein
or the term "Board of Directors of the Company" were
substituted for the term "Board".
In no event, however, shall a Change of Control be deemed to
have occurred as a result of any acquisition of securities or
assets of the Association, the Association, or an affiliate or
subsidiary of either of them, by the Association, the
Association, or a subsidiary of either of them, or by any
employee benefit plan maintained by any of them. For purposes
of this Section 11 (a), the term "person" shall have the
meaning assigned to it under Sections 13(d)(3) or 14(d)(2) of
the Exchange Act.
(b) In the event of a Change of Control, the Executive shall be
entitled to the payments and benefits contemplated by Section
9(b) in the event of his or her termination of employment with
the Association under any of the circumstances described in
Section 9(a) of this Agreement or under any of the following
circumstances:
(i) resignation, voluntary or otherwise, by the Executive
at any time during the Employment Period within six
(6) months following his or her demotion, loss of
title, office or significant authority or
responsibility or following any reduction in any
element of his or her package of compensation and
benefits;
(ii) resignation, voluntary or otherwise, by the Executive
at any time during the Employment Period within six
(6) months following any relocation of his or her
principal place of employment or any change in
working conditions at such principal place of
employment which the Executive, in his or her
reasonable discretion, determines to be embarrassing,
derogatory or otherwise adverse;
(iii) resignation, voluntary or otherwise, by the Executive
at any time during the Employment Period within six
(6) months following the failure of any successor to
the Association in the Change of Control to include
the Executive in any compensation or benefit program
maintained by it or covering any of its executive
officers, unless the Executive is already covered by
a substantially similar plan of the Association which
is at least as favorable to him or her; or
(iv) resignation, voluntary or otherwise, for any reason
whatsoever during the Employment Period within six
months following the expiration of a transition
period of thirty (30) days beginning on the effective
date of the Change of
Page 20 of 29
21
Control (or for such longer period, not to exceed
ninety (90) days beginning on the effective date of
the Change of Control, as the Association or its
successor may reasonably request) to facilitate a
transfer of management responsibilities.
Section 12. Covenant Not To Compete.
The Executive hereby covenants and agrees that, in the event of his or
her termination of employment with the Association prior to the expiration of
the Employment Period, for a period of one (1) year following the date of his or
her termination of employment with the Association (or, if less, for the
Remaining Unexpired Employment Period), the Executive shall not, without the
written consent of the Association, become an officer, employee, consultant,
director or trustee of any savings bank, savings and loan association, savings
and loan holding Association, bank or bank holding Association, or any direct or
indirect subsidiary or affiliate of any such entity, that entails working in any
city, town or county in which the Association or the Association has an office
or has filed an application for regulatory approval to establish an office,
determined as of the effective date of the Executive's termination of
employment; provided, however, that this Section 12 shall not apply if the
Executive's employment is terminated for the reasons set forth in Section 9(a);
and provided, further, that if the Executive's employment shall be terminated on
account of Disability as provided in Section 10(c) of this Agreement, this
Section 12 shall not prevent the Executive from accepting any position or
performing any services if:
(a) he or she first offers, by written notice, to accept a similar
position with or perform similar services for the Association
on substantially the same terms and conditions and
(b) the Association declines to accept such offer within ten (10)
days after such notice is given.
Section 13. Confidentiality.
Unless the Executive obtains the prior written consent of the
Association, the Executive shall keep confidential and shall refrain from using
for the benefit of the Executive or any person or entity other than the
Association, any entity which is a subsidiary of the Association or any entity
which the Association is a subsidiary of, any material document or information
obtained from the Association, or from its affiliates or subsidiaries, in the
course of the Executive's employment with any of them concerning their
properties, operations or business (unless such document or information is
readily ascertainable from public or published information or trade sources or
has otherwise been made available to the public through no fault of his or her
own) until the same ceases to be material (or becomes so ascertainable or
available); provided, however, that nothing in this Section 13 shall prevent the
Executive, with or without the Association's consent, 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
Page 21 of 29
22
under applicable law.
Section 14. Solicitation.
The Executive hereby covenants and agrees that, for a period of one (1)
year following the Executive's termination of employment with the Association,
he or she shall not, without the written consent of the Association, either
directly or indirectly:
(a) 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 Association, the Association or any
affiliate or subsidiary of ether of them, to terminate his or
her employment and accept employment or become affiliated
with, or provide services for compensation in any capacity
whatsoever to, any savings bank, savings and loan association,
bank, bank holding Association, savings and loan holding
Association, or other institution engaged in the business of
accepting deposits and making loans, doing business in any
city, town or county in which the Association or the
Association has an office or has filed an application for
regulatory approval to establish an office;
(b) provide any information, advice or recommendation with respect
to any such officer or employee to any savings bank, savings
and loan association, bank, bank holding Association, savings
and loan holding Association, or other institution engaged in
the business of accepting deposits and making loans, doing
business in any city, town or county in which the Association
or the Association has an office or has filed an application
for regulatory approval to establish an office that is
intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any
officer or employee of the Association, the Association, or
any affiliate or subsidiary of either of them, to terminate
his or her employment and accept employment, become affiliated
with or provide services for compensation in any capacity
whatsoever to any such savings bank, savings and loan
association, bank, bank holding Association, savings and loan
holding Association or other institution engaged in the
business of accepting deposits and making loans; or
(c) 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 Association, the Association,
or any affiliate or subsidiary of either of them to terminate
an existing business or commercial relationship with the
Association, the Association, or any affiliate or subsidiary
of either of them.
Section 15. No Effect on Employee Benefit Plans or Programs.
The termination of the Executive's employment during the term of this
Agreement or
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thereafter, whether by the Association or by the Executive, shall have no effect
on the rights and obligations of the parties hereto under the Association's
qualified or non-qualified retirement, pension, savings, thrift, profit-sharing
or stock bonus plans, group life, health (including hospitalization, medical and
major medical), dental, accident and long term disability insurance plans or
such other employee benefit plans or programs, or compensation plans or
programs, as may be maintained by, or cover employees of, the Association from
time to time.
Section 16. Successors and Assigns.
This Agreement will inure to the benefit of and be binding upon the
Executive, his or her legal representatives and testate or intestate
distributees, and the Association and its successors and assigns, including any
successor by merger or consolidation or a statutory receiver or any other person
or firm or corporation to which all or substantially all of the assets and
business of the Association may be sold or otherwise transferred. Failure of the
Association to obtain from any successor its express written assumption of the
Association's obligations under this Agreement at least sixty (60) days in
advance of the scheduled effective date of any such succession shall be deemed a
material breach of this Agreement.
Section 17. Notices.
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five (5) days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
If to the Executive:
Xxxx X. Xxxxxxxxx
00 Xxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
If to the Association:
Astoria Federal Savings and Loan Association
Xxx Xxxxxxx Xxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000-0000
Attention: Chairman, President and Chief Executive Officer
with a copy to:
Page 23 of 29
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Xxxxxxx Xxxxxxxx & Xxxx
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. Xxxxxx Xxxxxx, Esq.
Section 18. Indemnification for Attorneys' Fees.
The Association shall indemnify, hold harmless and defend the Executive
against reasonable costs, including legal fees, incurred by him or her in
connection with or arising out of any action, suit or proceeding in which he or
she may be involved, as a result of his or her efforts, in good faith, to defend
or enforce the terms of this Agreement; provided, however, that in the case of
any action, suit or proceeding instituted prior to a Change of Control, the
Executive shall have substantially prevailed on the merits pursuant to a
judgment, decree or order of a court of competent jurisdiction or of an
arbitrator in an arbitration proceeding, or in a settlement. For purposes of
this Agreement, any settlement agreement which provides for payment of any
amounts in settlement of the Association's obligations hereunder shall be
conclusive evidence of the Executive's entitlement to indemnification hereunder,
and any such indemnification payments shall be in addition to amounts payable
pursuant to such settlement agreement, unless such settlement agreement
expressly provides otherwise.
Section 19. Severability.
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
Section 20. Waiver.
Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
Section 21. Counterparts.
This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same Agreement.
Section 22. Governing Law.
This Agreement shall be governed by and construed and enforced
in accordance with the
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federal laws of the United States and, to the extent that federal law is
inapplicable, in accordance with the laws of the State of New York applicable to
contracts entered into and to be performed entirely within the State of New
York.
Section 23. Headings and Construction.
The headings of sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any section. Any
reference to a section number shall refer to a section of this Agreement, unless
otherwise stated.
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26
Section 24. Entire Agreement: Modifications.
This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof. No modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
Section 25. Survival.
The provisions of any sections of this Agreement which by its terms
contemplates performance after the expiration or termination of this Agreement
(including, but not limited to, Sections 6, 9, 10, 11, 12, 13, 14, 15, 16, 17,
18, 20, 26, 27 and 28) shall survive the expiration of the Employment Period or
termination of this Agreement.
Section 26. Equitable Remedies.
The Association and the Executive hereby stipulate that money damages
are an inadequate remedy for violations of Sections 6(a), 12, 13 or 14 of this
Agreement and agree that equitable remedies, including, without limitations, the
remedies of specific performance and injunctive relief, shall be available with
respect to the enforcement of such provisions.
Section 27. Required Regulatory Provisions.
The following provisions are included for the purposes of complying
with various laws, rules and regulations applicable to the Association:
(a) Notwithstanding anything herein contained to the contrary, in
no event shall the aggregate amount of compensation payable to
the Executive pursuant to Section 9(b) of this Agreement
(exclusive of amounts described in Section 9(b)(i), (ii),
(viii) or (ix)) exceed three times the Executive's average
annual total compensation for the last five consecutive
calendar years to end prior to the Executive's termination of
employment with the Association (or for the Executive's entire
period of employment with the Association if less than five
calendar years).
(b) Notwithstanding anything herein contained to the contrary, any
payments to the Executive by the Association, 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 ("FDI Act"), 12 U.S.C. Section1828(k),
and any regulations promulgated thereunder.
(c) Notwithstanding anything herein contained to the contrary, if
the Executive is suspended from office and/or temporarily
prohibited from participating in the
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conduct of the affairs of the Association pursuant to a notice
served under Section 8(e)(3) or 8(g)(1) of the FDI Act, 12
U.S.C. Section1818(e)(3) or 1818(g)(1), the Association's
obligations under this Agreement shall be suspended as of the
date of service of such notice, unless stayed by appropriate
proceedings. If the charges in such notice are dismissed, the
Association, in its discretion, may (i) pay to the Executive
all or part of the compensation withheld while the
Association's obligations hereunder were suspended and (ii)
reinstate, in whole or in part, any of the obligations which
were suspended.
(d) Notwithstanding anything herein contained to the contrary, if
the Executive is removed and/or permanently prohibited from
participating in the conduct of the Association's affairs by
an order issued under Section 8(e)(4) or 8(g)(1) of the FDI
Act, 12 U.S.C. Section1818(e)(4) or (g)(1), all prospective
obligations of the Association under this Agreement shall
terminate as of the effective date of the order, but vested
rights and obligations of the Association and the Executive
shall not be affected.
(e) Notwithstanding anything herein contained to the contrary, if
the Association is in default (within the meaning of Section
3(x)(1) of the FDI Act, 12 U.S.C. Section1813(x)(1), all
prospective obligations of the Association under this
Agreement shall terminate as of the date of default, but
vested rights and obligations of the Association and the
Executive shall not be affected.
(f) Notwithstanding anything herein contained to the contrary, all
prospective obligations of the Association hereunder shall be
terminated, except to the extent that a continuation of this
Agreement is necessary for the continued operation of the
Association: (i) by the Director of the Office of Thrift
Supervision ("OTS") or his or her designee or the Federal
Deposit Insurance Corporation ("FDIC"), at the time the FDIC
enters into an agreement to provide assistance to or on behalf
of the Association under the authority contained in Section
13(c) of the FDI Act, 12 U.S.C. Section1823(c); (ii) by the
Director of the OTS or his or her designee at the time such
Director or designee approves a supervisory merger to resolve
problems related to the operation of the Association or when
the Association is determined by such Director to be in an
unsafe or unsound condition. The vested rights and obligations
of the parties shall not be affected.
If and to the extent that any of the foregoing provisions shall cease to be
required or by applicable law, rule or regulation, the same shall become
inoperative as though eliminated by formal amendment of this Agreement.
Section 28. No Offset or Recoupment; No Attachment.
The Association's obligation to make the payments provided for in this
Agreement and
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otherwise to perform its obligations under this Agreement shall not be affected
by any set-off, counterclaim, recoupment, defense or other claim, right or
action which the Association or any of its affiliates or subsidiaries may have
against the Executive. In no event shall the Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to the Executive under any of the provisions of this Agreement and such
amounts shall not be reduced whether or not the Executive obtains other
employment. 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.
Section 29. LISB Transaction.
The Executive hereby waives any claim the Executive may have pursuant
to his or her Employment Agreements each dated January 1, 1996 with the Company
and the Association, respectively, that the acquisition by and the merger of
Long Island Bancorp, Inc. and The Long Island Savings Bank, FSB with and into
the Company and the Association, respectively, constituted a "change of control"
of the Company or the Association as defined in such Employment Contracts.
IN WITNESS WHEREOF, the Association has caused this Agreement to be
executed and the Executive has hereunto set his or her hand, all as of the day
and year first above written.
ATTEST:
/S/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
[Seal]
ASTORIA FEDERAL SAVINGS AND LOAN
ASSOCIATION
By: /S/ Xxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Chairman, President and Chief
Executive Officer
/S/ Xxxx X. Xxxxxxxxx
XXXX X. XXXXXXXXX
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
On this 20 day of March, 2000, before me, the undersigned, personally
appeared Xxxx X.
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Xxxxxxxxx, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
/S/ Xxxx Xxxxx
Notary Public
Xxxx Xxxxx
Notary Public, State of New York
No. 4980431
Qualified in Suffolk County
Commission Expires April 22, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NASSAU )
On this 20 day of March, 2000, before me, the undersigned, personally
appeared Xxxxxx X. Xxxxxxx, Xx., personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
/S/ Xxxx Xxxxx
Notary Public
Xxxx Xxxxx
Notary Public, State of New York
No. 4980431
Qualified in Suffolk County
Commission Expires April 22, 2001
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