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FORM OF AMENDMENT TO CHANGE IN
CONTROL SEVERANCE AGREEMENT
THIS AMENDMENT
(the “ Amendment ”) is made by Sterling Bancorp
(the “ Company ”) and
(“ Executive ”) to be effective as of
December 29, 2008.
WHEREAS, the
Company and Executive are parties to a Change in Control Severance
Agreement dated
which was amended on
(the “ Agreement ”);
WHEREAS, the
Company and Executive desires to amend certain provisions of the
Agreement in order to be exempt from or comply with
Section 409A of the Internal Revenue Code of 1986, as amended
(“ Section 409A ”); and
NOW, THEREFORE,
the Agreement is hereby amended as follows:
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1.
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Section 2 of the Agreement is
hereby amended by adding the following sentence at the end
thereof:
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“Executive will be permitted
to continue to engage in activities not directly related to the
business of the Company which Executive was permitted to engage in
prior to a Change in Control (as defined in Schedule A
hereto).”
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2.
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The
second and third sentences of Section 9(b) of the Agreement shall
be hereby deleted in their entirety.
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3.
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The
following paragraph shall be added as the new Section 17 of
the Agreement as follows:
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“17. Section 409A
. It is the parties’ intent that the Agreement comply with or
be exempt from the requirements of Section 409A and that the
Agreement be administered and interpreted accordingly. Each payment
made under this Agreement shall be deemed to be separate payments.
Amounts payable under this Agreement shall be deemed not to be a
“deferral of compensation” subject to Section 409A
to the extent provided in the exceptions in Treasury
Regulation Sections 1.409A-1(b)(4) (“short-term
deferrals”) and (b)(9) (“separation pay plans,”
including the exception under subparagraph (iii)) and other
applicable provisions of Treasury
Regulation Section 1.409A-1 through A-6. Notwithstanding
the previous sentence, if and to the extent that any payment or
benefit under this Agreement is determined by the Company to
constitute “non-qualified deferred compensation”
subject to Section 409A and is payable to Executive by reason
of Executive’s termination of employment, then (a) such
payment or benefit shall be made or provided to Executive only upon
a “separation from service” as defined for purposes of
Section 409A under applicable regulations and (b) if
Executive is a “specified employee” (within the meaning
of Section 409A and as determined by the Company), such payment or
benefit shall be made or provided on the date that is six months
and one day after the date of
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