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FORM OF AMENDMENT TO CHANGE IN
CONTROL SEVERANCE AND RETENTION 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
and Retention Agreement dated
(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 4(a)(2) of the
Agreement is hereby replaced by the following:
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“Subject to Section 4(c)
below, within 60 days following the Date of Termination, a
lump sum cash severance amount equal to one (1) times
Executive’s highest annual rate of base salary during the
12-month period immediately prior to Executive’s Date of
Termination.”
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2.
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Section 4(c) of the Agreement
is hereby amended by adding the following at the end
thereof:
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“; provided, that, such
release must become effective (that is be signed and not be revoked
within any applicable revocation period) within 55 days
following the Date of Termination.”
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3.
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The
following paragraph shall be added as the new Section 19 of
the Agreement as follows:
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“19. 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 Compan
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