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EXHIBIT 10.26
EMPLOYMENT TERMINATION AND RELEASE AGREEMENT
This EMPLOYMENT TERMINATION AND RELEASE AGREEMENT (hereinafter
referred to as the "Agreement") is made and entered into by and among XXXX X.
XXXXXXX, XX. (referred to below as "You" or "Your"), ASTORIA FEDERAL SAVINGS AND
LOAN ASSOCIATION (referred to below as the "Company") and ASTORIA FINANCIAL
CORPORATION (referred to below as the "Holding Company").
PRELIMINARY STATEMENT
Your employment with the Holding Company and/or the Company is
being terminated. The Holding Company is prepared to pay You severance benefits,
but will do so only if You give up Your rights to bring or participate in
certain types of lawsuits. By signing this Agreement, You will give up those
rights, and the Holding Company will agree to pay You severance benefits. This
Agreement was given to You on November 21, 2000. This Agreement will be of no
force or effect unless it is properly signed and returned to the Company no
later than December 29, 2000.
YOU SHOULD THOROUGHLY REVIEW AND UNDERSTAND THE TERMS, CONDITIONS AND EFFECT OF
THIS AGREEMENT. THEREFORE, YOU HAVE A MINIMUM OF TWENTY-ONE (21) DAYS AFTER THIS
AGREEMENT IS GIVEN TO YOU TO CONSIDER IT BEFORE SIGNING IT. YOU ARE ADVISED TO
CONSULT WITH AN ATTORNEY BEFORE YOU SIGN.
AGREEMENT
1. You shall resign from your position as an operating officer,
as well as from any and all other positions that You hold in Your capacity as an
employee of the Holding Company, the Company and their direct or indirect
subsidiaries and affiliates, effective at the close of business on December 29,
2000 (the "Termination Date"). Your resignation shall have no effect on Your
status as a non-employee Vice Chairman and director of the Company or the
Holding Company and shall result in the commencement, on the day after the
Termination Date, of the Consulting Period under the Litigation Advisory
Committee Consulting Agreement between You and the Holding Company made and
entered into as of April 2, 1998 (the "Litigation Committee Agreement").
2. Your compensation and fringe benefits as an employee will
continue through the Termination Date in accordance with Your Employment
Agreement dated April 2, 1998 by and between You and the Holding Company. You
acknowledge that, because Your Termination Date is prior to January 1, 2001, You
will not be eligible for a bonus under the Astoria Financial Corporation
Executive Officer Annual Incentive Plan for the fiscal year ending December 31,
2000. In recognition of this fact, the Company will pay You on or before January
26, 2001 (or, if later, the date on which this Agreement becomes irrevocable)
such sum as would have been due and payable
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to you pursuant to the Astoria Financial Corporation Executive Officer Annual
Incentive Plan had Your employment not terminated until after December 31, 2000
based upon the terms and conditions of the Astoria Financial Corporation
Executive Officer Annual Incentive Plan consistently applied to all of the
Astoria Financial Corporation Executive Officer Annual Incentive Plan's
participants for the 2000 Plan year. In addition, the Company will provide to
you a continuation of Your life, health and medical insurance coverages upon the
same terms and conditions that would apply to you as an active employee
(including, but not limited to, premium sharing arrangements, deductibles and
co-payments) for a period of 3 years beginning on the Termination Date (the
"Continued Benefits"). Any period for which You may be entitled to elect
"continuation coverage" under any applicable federal, state or local law shall
not commence running until the expiration of the period for which Continued
Benefits are provided hereunder. You acknowledge that, because Your Termination
Date is prior to December 31, 2000, You will not be eligible for a year end
allocation under the Astoria Federal Savings and Loan Association Employee Stock
Ownership Plan (the "ESOP") for the fiscal year ending December 31, 2000. In
recognition of this fact, the Company will pay You as soon as practicable
following the determination of what such allocation would have been had You been
employed by the Company through December 31, 2000 (or, if later, the date on
which this Agreement becomes irrevocable) such sum in cash as would have been
due and payable to you pursuant to the ESOP had Your employment not terminated
until after December 31, 2000 based upon the terms and conditions of the ESOP
consistently applied to all of the ESOP's participants for the 2000 Plan year.
Such payments shall be subject to deductions for applicable federal, state and
local withholding taxes.
3. The Company will provide You with all of the post-employment
benefits for which You are eligible under the Company's post-employment benefit
plans, in accordance with the plans' prevailing terms and conditions. You
acknowledge that such benefits do not include benefits under any severance
benefits or plans, however denominated, maintained by the Company or the Holding
Company. In addition, the Company will pay You $5,426,127.08 on January 12, 2001
(or, if later, the date on which the Agreement becomes irrevocable),
representing the aggregate amount potentially due to You pursuant to sections
9(b)(iv), (v), (vi) and (vii) of the Employment Agreement between You and the
Holding Company dated April 2, 1998 (the "Employment Agreement"). All such
compensation and benefits shall be subject to deductions for applicable federal,
state and local withholding taxes. You will be deemed fully vested in all
restricted stock awards and unexercised stock options outstanding to You as of
December 29, 2000 under any stock option or restricted stock plan, program or
arrangement of the Company or the Holding Company. For purposes of determining
any post-termination exercise period for Your outstanding stock options, the
Termination Date shall be considered the date of termination of Your employment,
notwithstanding Your continued performance of service as a non-employee director
or pursuant to the Litigation Advisor Committee Consulting Agreement. In making
these payments, neither the Company nor the Holding Company concedes that it is
contractually liable for them under the Employment Agreement.
4. You hereby agree that You, on behalf of Yourself and also on
behalf of any other person or persons claiming or deriving a right from You,
unconditionally and irrevocably forever release and discharge the Company, the
Holding Company and their respective shareholders,
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agents, servants, employees, directors, officers, affiliates and/or
subsidiaries, and any shareholders, agents, servants, employees, directors
and/or officers of all such affiliates and/or subsidiaries and their respective
heirs, successors and assigns ("the Releasees") from any and all charges,
complaints, claims, liabilities, obligations, promises, agreements,
controversies, actions, demands, debts, costs, expenses, damages, injuries or
causes of action ("Claims") which You now have, or ever have had, arising out of
Your employment by, or termination of employment by, the Holding Company and/or
the Company, up to and including the date on which You sign this Agreement,
whether arising in equity or pursuant to any law, rule or regulation, including
any Claims of which You are not aware or do not suspect to exist as of the date
on which You sign this Agreement, and specifically including claims under
section 9 of the Employment Agreement; provided, however, that nothing contained
herein shall be deemed a release or waiver of Your rights pursuant to Section 6
of Your Employment Agreement dated April 2, 1998 by and between You and the
Holding Company.
5. The release contained in Paragraph 4 of this Agreement
includes, but is not limited to, any Claims that You (or any person or persons
claiming or deriving a right from You) may have based on discrimination due to
age, race, sex, religion or national origin, or any other claims pursuant to the
Worker Adjustment and Retraining Notification Act, the Age Discrimination in
Employment Act of 1967, as amended, the National Labor Relations Act, Title VII
of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Family and
Medical Leave Act, the Rehabilitation Act of 1973, the Americans with
Disabilities Act, the Equal Pay Act, the Fair Labor Standards Act, the Employee
Retirement Income Security Act of 1974, as amended, the Internal Revenue Code of
1986, as amended, Executive Orders Nos. 11246 and 11141, the New York Human
Rights Law, the New York Equal Pay Law, the New York Equal Rights Law, and any
other federal, state or local statute, rule, constitutional provision,
regulation, ordinance or common law, including, but not limited to, those for
wrongful discharge, fraud, intentional or negligent infliction of emotional
distress and breach of any expressed or implied covenant of good faith and fair
dealing, and including but not limited to, any Claims for recovery of attorney's
fees. YOU UNDERSTAND THAT BY SIGNING THIS RELEASE, YOU ARE GIVING UP ALL RIGHTS
THAT YOU HAVE UNDER THESE AND OTHER LAWS.
6. You acknowledge that:
(a) the payments and benefits provided in Paragraphs 2 and 3 of
this Agreement ("Additional Benefits") are in consideration
for the release contained herein and are in addition to what
You are otherwise entitled to receive from the Company;
(b) You have been advised to consult an attorney before signing
this Agreement and have been afforded the opportunity to do
so;
(c) You have had the opportunity to consider this Agreement for
at least 21 days;
(d) You have read this Agreement in its entirety, understand its
terms, and knowingly and voluntarily consent to its terms
and conditions;
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(e) the releases made by You in Paragraphs 4 and 5 of this
Agreement are made knowingly and voluntarily, and without coercion by
the Company, the Holding Company or any of the Releasees; and
(f) the filing of a Claim against the Company, the Holding
Company or any of the Releasees by You (or any person or persons
claiming or deriving a right from You) shall be a violation of this
Agreement resulting in Your obligation to repay to the Company the
Additional Benefits You have received in consideration of the releases
made by You in Paragraphs 4 and 5 of this Agreement and forfeiture of
Your rights to any future Additional Benefits, in addition to any costs
or liabilities that may be imposed on You by a court for a violation of
this Agreement.
7. The Holding Company and the Company agree that upon Your
execution of this Agreement, the Holding Company shall cause to be released a
press release which shall contain a statement as the termination of Your
employment from the Holding Company and the reason(s) for such termination as
set forth in Exhibit A to this Agreement. Neither the Holding Company or the
Company will make any other disclosures concerning Your employment or other
information regarding You except for confirming employment, job title, dates of
service and rate of pay, plus additional information as, and only as, required
pursuant to subpoena or otherwise required by law. You agree hereafter not to
disclose or make reference to the terms of this Agreement except to Your
attorney and Your immediate family or as required by law without the prior
written consent of the Company. You further understand and agree that You shall
not hereafter contact or communicate with employees of the Company or former
employees of the Company regarding the subject matter of this Agreement and will
not join in, facilitate or otherwise participate in any action, proceeding or
investigation against the Company. To the extent provided by law, You will not
be prohibited from filing claims, or participating in claims filed by others,
with the Equal Employment Opportunity Commission.
8. Neither Your termination of employment nor the execution of
this Agreement shall affect our respective rights and obligations under the
Litigation Committee Agreement or sections 6, 13, 14 or 15 of the Employment
Agreement, all of which shall continue in effect. For purposes of determining
the period during which sections 6, 13 and 15 of the Employment Agreement shall
apply, the Termination Date shall be deemed to be the last day of the Employment
Period and the date of termination of your employment.
9. This Agreement constitutes the entire understanding between
the parties, and supersedes any and all prior understandings and agreements
between the parties.
10.The parties acknowledge that no representations, promises,
consideration or inducements have been made by the Company or by any of the
Releasees to You other than what is contained in this Agreement.
11.This Agreement may not be modified except by a writing
signed by all parties.
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12.The parties acknowledge that this Agreement does not
constitute or imply any admission of liability by the Company, or by any of the
Releasees, to You or to anyone deriving or claiming a right through You or on
Your behalf.
13.If any provision in this Agreement is declared or determined
by any court to be illegal, void, or unenforceable, the illegality or
unenforceability of such provision shall have no effect upon, and shall not
impair, the enforceability or validity of any other provisions in this
Agreement.
00.Xxx agree and understand that any action by You in violation
of this Agreement shall void the Company's payments to You of all Additional
Benefits provided for herein and shall require Your immediate repayment of the
value of all consideration paid to You pursuant to this Agreement, and shall
further require You to pay all reasonable costs and attorneys' fees in defending
any action You bring plus any other damages to which the Company may be
entitled. You further consent to the issuance of a temporary restraining order
and/or injunction as an appropriate remedy for violation of this Agreement and
will not contest the entry of same if a violation is shown.
15.This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
16.The parties acknowledge that this Agreement will only become
effective and irrevocable on the eighth day following the day it is signed by
You and delivered by You to the Company and only if it is delivered by You to
the Company no later than December 29, 2000. You may revoke this Agreement at
any time prior to its effective date by giving written notice of revocation to
the Company by registered or certified mailed addressed as follows: Astoria
Federal Savings and Loan Association, Xxx Xxxxxxx Xxxxxxx Xxxxx, Xxxx Xxxxxxx,
Xxx Xxxx 00000-0000, Attention: General Counsel. No payments will be made or
benefits provided until this Agreement has become irrevocable.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first herein written.
ASTORIA FEDERAL SAVINGS AND LOAN
ASSOCIATION
/s/ Xxxx X. Xxxxxxx, Xx. By:/s/ Xxxxxx X. Xxxxxxx, Xx.
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Employee Signature Name:Xxxxxx X. Xxxxxxx, Xx.
Title: Chairman, President and
Chief Executive Officer
November 21, 2000 November 21, 2000
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Date of Signature Date of Delivery of Signed Agreement
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ASTORIA FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Chairman, President and
Chief Executive Officer
Exhibit A
Contact: Xxxxx X. Xxxxxxxxxx
First Vice President
Investor Relations
000-000-0000
FOR IMMEDIATE RELEASE
XXXX X. XXXXXXX, XX., VICE CHAIRMAN, TO RESIGN AS AN OPERATING OFFICER
OF ASTORIA FINANCIAL CORPORATION
Lake Success, New York, November 22, 2000 -- Xxxxxx X. Xxxxxxx, Xx. Chairman,
President and Chief Executive Officer of Astoria Financial Corporation (Nasdaq:
ASFC), announced today that Astoria Financial Corporation has agreed, effective
December 29, 2000, to accept the resignation of Xxxx X. ("Xxx") Xxxxxxx, Jr. as
an operating officer of Astoria Financial Corporation. No replacement will be
named for Xx. Xxxxxxx, who will continue to serve as a Vice Chairman of the
Board of Directors of Astoria Financial Corporation and Astoria Federal Savings
and Loan Association. Xx. Xxxxxxx commented, "We are grateful for the
significant contribution Xxx Xxxxxxx made to Astoria in assisting with the
seamless integration of The Long Island Savings Bank, FSB into Astoria Federal
Savings and Loan Association following its acquisition by Astoria Financial
Corporation. We are also very pleased that Xxx will continue to serve as a
director." In accordance with his employment contract, Xx. Xxxxxxx will receive
a severance payment which will result in an after-tax charge to operations in
the fourth quarter ending December 31, 2000 of approximately $3.5 million, or
$0.07 per diluted common share.
Astoria Financial Corporation, the holding company for Astoria Federal
Savings and Loan Association with assets of $22.2 billion, is the second largest
thrift institution in New York and sixth largest in the United States. Astoria
Federal, through its 87 banking offices, provides retail banking, mortgage,
consumer and small business loan services to 700,000 customers. Astoria commands
the third largest deposit market share in the attractive Long Island market,
which includes Brooklyn, Queens, Nassau and Suffolk counties with a population
exceeding that of 39 individual states. Astoria originates mortgage loans
through an extensive broker network and/or loan production offices in fourteen
states: New York, New Jersey, Connecticut, Pennsylvania, Ohio, Massachusetts,
Delaware, Maryland, Illinois, Virginia, North Carolina, South Carolina, Xxxxxxx
xxx Xxxxxxx.
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