Exhibit 10.170
AMENDMENT TO
CHANGE IN CONTROL LETTER AGREEMENT
This amendment (the
“Amendment”) is to the change in control severance
letter between Thomas P. Gibbons (the “Executive”) and
The Bank of New York Company, Inc., dated July 11, 2000 (the
“Agreement”).
WHEREAS, The Bank of New York Mellon
Corporation (the “Company”), as successor in interest
to The Bank of New York Company, Inc., desires to implement certain
amendments to the Agreement in order to avoid certain adverse
federal income tax consequences to the Executive under the
Agreement as a result of Section 409A of the Internal Revenue
Code of 1986, as amended; and
WHEREAS, the Agreement authorizes
the Company and the Executive to amend or revise the terms of the
Agreement.
NOW, THEREFORE, effective as of
January 1, 2009, the Agreement is hereby amended as
follows:
Section 1. A new
Section 17 entitled “Code Section 409A” is
added to the Agreement to read as follows:
(i) Notwithstanding anything to the
contrary in this Agreement or elsewhere, if (A) any severance
payments or benefits provided for in this Agreement or otherwise
both constitutes a “deferral of compensation” within
the meaning of Section 409A and cannot be paid or provided in
the manner otherwise provided without subjecting you to
“additional tax”, interest or penalties under
Section 409A and (B) you are a “specified
employee” as determined pursuant to Section 409A as of
the date of your “separation from service” (within the
meaning of Treasury Regulation 1.409A-1(h)), then any such payment
that is payable during the first six months following your
“separation from service” shall be paid to you in a
lump sum on the first business day of the seventh calendar month
following the month in which your “separation from
service” occurs or, if earlier, at your death. In
addition, any severance payment or benefit payable upon a
termination of employment that represents
