AMENDMENT NO. 1 TO AMENDED AND RESTATED CHANGE OF CONTROL SEVERANCE AGREEMENT
Exhibit
10.19
AMENDMENT
NO. 1 TO AMENDED AND RESTATED
This
AMENDMENT NO. 1 TO AMENDED AND RESTATED CHANGE OF
CONTROL SEVERANCE AGREEMENT (the “Amendment”) is made and entered into as of
April 21, 2010 by and among Astoria
Financial Corporation, a business corporation organized and operating
under the laws of the State of Delaware and having an office at Xxx Xxxxxxx
Xxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxx Xxxx 00000-0000 (the “Company”), Astoria
Federal Savings And Loan Association, a savings and loan association
organized and existing under the laws of the United States of America and having
an office at One Xxxxxxx Xxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxx Xxxx 00000 (the
"Association"), and Xxxxxxx X. Xxxxxx, Xx., an individual residing at 0 Xxxx
Xxxxxxx Xxxxx, Xxxxxxxxxxx, Xxx Xxxx 00000 (the "Officer").
Witnesseth:
Whereas,
the Officer and the Company are parties to an AMENDED AND RESTATED CHANGE OF
CONTROL SEVERANCE AGREEMENT as of January 1, 2009, (the “Prior Agreement”);
and
Whereas,
the Officer and the Company wish to further amend and modify the Prior Agreement
pursuant to Section 26 thereof;
Now,
Therefore, in consideration of the premises and the mutual covenants and
conditions hereinafter set forth, the Company and the Officer hereby agree as
follows:
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1.
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Section
6(b)(i) of the Prior Agreement be amended to read in its entirety as
follows:
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(i) the
Association shall provide for a period of two years following the date of the
Officer's discharge or, if less, the period from date of the Officer's discharge
to the Initial Expiration Date provided, however, that the
Association has previously notified the Officer pursuant to Section 1(a)(ii)(A)
(the "Assurance Period") for the benefit of the Officer and the Officer's spouse
and dependents continued group life, health (including hospitalization, medical
and major medical), dental, accident and long-term disability insurance benefits
on substantially the same terms and conditions (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) in effect for
them immediately prior to the Officer's discharge. The coverage provided under
this section 6(b)(i) may, at the election of the Association, be secondary to
the coverage provided as part of the Standard Termination Entitlements and to
any employer-paid coverage provided by a subsequent employer or through
Medicare, with the result that benefits under the other coverages will offset
the coverage required by this section 6(b)(i), provided, however, that for
purposes of this section 6(b)(i) benefits provided at the cost of the Officer or
the Officer's spouse or dependants pursuant to the Comprehensive Omnibus Budget
Reconciliation Act, as amended, shall not be considered Standard Termination
Entitlements.
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2.
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Section
6(b)(iii) of the Prior Agreement shall be amended by deleting the variable
“AP” from the equation therein, deleting the definition of “AP” therein
and amending the definition of “TIO” therein to read in its entirety as
follows:
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“TIO” is
the target incentive opportunity (expressed as a percentage of base salary)
established by the Compensation Committee of the Board of Directors of the
Association for the Officer pursuant to the Association’s Annual Incentive Plan
for Select Executives for the year in which the employment of the Officer by the
Association terminates or, if no target incentive opportunity is established by
the Compensation Committee of the Board of Directors of the Association for such
year with respect to the Officer, then the highest of the target incentive
opportunity established by the Compensation Committee of the Board of Directors
of the Association for the Officer pursuant to the Annual Incentive Plan for
Select Executives during the period of three (3) years ending immediately prior
to the date of termination;
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3.
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Section
8(a) of the Prior Agreement shall be amended to read in its entirety as
follows:
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(a) To
the maximum extent permitted under applicable law, from and after the effective
date of a Change of Control, the Association and the Company agree to indemnify
and hold harmless the Officer, against any costs or expenses (including
reasonable attorneys' fees), judgments, fines, losses, claims, damages or
liabilities (collectively, "Costs") incurred in connection with any claim,
action, suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, for acts or omissions in connection with
service as an officer of the Association or service in other capacities at the
request of the Association or the Company at or prior to the time the Change of
Control became effective, whether asserted or claimed prior to, at or after the
effective date of the Change of Control, and to advance any such Costs to the
Officer as they are from time to time incurred, in each case to the fullest
extent the Officer would have been indemnified as a director or officer of the
Association or the Company, as applicable, and as then permitted under
applicable law. No provision in this Agreement nor any termination or expiration
of this Agreement is intended to authorize the elimination or impairment of any
right to indemnification or to advancement of expenses arising under a provision
of the certificate of incorporation or a bylaw of the Company or the Charter and
or a bylaw of the Association by amendment to such a provision after the
occurrence of an act or omission that is the subject of an action, suit or
proceeding for which indemnification is sought.
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4.
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The
Prior Agreement shall be amended to remove Section 29
therefrom.
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5.
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Each
reference to “NY” in the Prior Agreement under Section 6(b) shall be
amended to provide that NY is the Assurance Period expressed as a number
of years and fractions of years.
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6.
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Each
reference to “Xxxxxxx Xxxxxxxx & Xxxx LLP” in the Prior Agreement,
whether with or without the LLP designation, will be replaced by a
reference to “Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
LLP”.
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7.
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Except
as specifically provided herein, the provisions of the Prior Agreement
shall continue in full force and
effect.
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In Witness
Whereof, the Company has caused this Amendment to be executed and the
Officer has hereunto set his or her hand, all as of the day and year first above
written.
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ATTEST:
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Astoria
Financial Corporation
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/S/ Xxxx X. Xxxxxxxxx
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By:
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/S/ Xxxxx X. Xxxxxx
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Name: Xxxx
X. Xxxxxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
President and Chief Operating Officer
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ATTEST:
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Astoria
Federal Savings and Loan Association
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/S/ Xxxx X. Xxxxxxxxx
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By:
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/S/ Xxxxx X. Xxxxxx
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Name: Xxxx
X. Xxxxxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
President and Chief Operating Officer
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[Seal]
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/S/ Xxxxxxx X.
Xxxxxx
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Xxxxxxx
X. Xxxxxx, Xx.
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STATE
OF NEW YORK
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)
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)
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ss.:
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COUNTY
OF NASSAU
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)
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On this
21st day of April, 2010 before me, the undersigned, personally appeared Xxxxx X.
Xxxxxx, 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.
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/S/ Xxxxxxxxx Xxxxxxxxx
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Name:
Xxxxxxxxx Xxxxxxxxx
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Notary
Public, State of New York
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No.
4998931
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Qualified
in Suffolk County
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Commission
Expires: July 13, 2010
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STATE
OF NEW YORK
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)
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)
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ss.:
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COUNTY
OF NASSAU
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)
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On this
21st day of April, 2010 before me, the undersigned, personally appeared Xxxxx X.
Xxxxxx, 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.
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/S/ Xxxxxxxxx Xxxxxxxxx
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Name:
Xxxxxxxxx Xxxxxxxxx
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Notary
Public, State of New York
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No.
4998931
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Qualified
in Suffolk County
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Commission
Expires: July 13, 0000
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XXXXX
XX XXX XXXX
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)
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)
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ss.:
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COUNTY
OF NASSAU
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)
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On this
21st day of April, 2010 before me, the undersigned, personally appeared Xxxxxxx
X. Xxxxxx, 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.
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/S/ Xxxxxxxxx Xxxxxxxxx
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Name:
Xxxxxxxxx Xxxxxxxxx
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Notary
Public, State of New York
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No.
4998931
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Qualified
in Suffolk County
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Commission
Expires: July 13, 2010
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