Exhibit
10-33
Astoria
Federal Savings and Loan Association
Amended
and Restated
Employment Agreement
with Executive Officer
This Amended and Restated Employment
Agreement (the "Agreement") is made and entered into as
of January 1, 2009 by and between Astoria Federal Savings and Loan
Association , a savings association organized and
operating under the federal laws of the United States and having an
office at One Astoria Federal Plaza, Lake Success, New York
11042-1085 (the "Association") and, Arnold K. Greenberg , an
individual residing at 40 Quintree Lane, Melville, New York
11747, (the "Executive").
Whereas,
the Executive currently serves the Association
in the capacity of Executive Vice President and as Executive Vice
President of the Association's savings and loan holding company,
Astoria Financial
Corporation, a publicly held business corporation
organized and operating pursuant to the laws of the State of
Delaware (the "Company"); and
Whereas,
the Association desires to assure for itself the
continued availability of the Executive's services and the ability
of the Executive to perform such services with a minimum of
personal distraction in the event of a pending or threatened Change
of Control (as hereinafter defined); and
Whereas,
the Executive is willing to continue to serve
the Association on the terms and conditions hereinafter set forth;
and
Whereas, the Executive
currently has an employment contract with the Association entered
into on January 1, 1996 (the “Initial Effective Date”),
amended and restated on January 1, 2000, and further amended as of
August 15, 2007 (such agreement, as amended, the “Prior
Agreement”); and
Whereas
, the Executive and the Association
wish to further amend and modify the Prior Agreement pursuant to
Section 24 thereof for the purpose, among others, of compliance
with the applicable requirements of Section 409A of the Internal
Revenue Code of 1986 (the “Code”);
Now,
Therefore, in consideration of the premises and the mutual
covenants and conditions hereinafter set forth, the Association and
the Executive amend and restate in its entirety the Employment
Agreement by and between the Association and the Executive as
amended through August 15, 2007 so as to provide as follows from
and after the date hereof:
The Association agrees to continue to employ the
Executive, and the Executive hereby agrees to such continued
employment, during the period and upon the terms and conditions set
forth in this Agreement.
|
|
Employment Period; Remaining Unexpired
Employment Period .
|
(a) The terms
and conditions of this Agreement shall be and remain in effect
during the period of employment established under this Section 2
(the "Employment Period"). The Employment Period shall be for an
initial term of three years beginning on the Initial Effective Date
and ending on the third anniversary date of the Effective Date,
plus such extensions, if any, as are provided by the Board of
Directors of the Association (the “Board”) as provided
below. Prior to the first anniversary of the date of this Agreement
and on each anniversary date thereafter (each an "Anniversary Date)
the Board shall review the terms of this Agreement and the
Executive's performance of services hereunder and may, in the
absence of objection from the Executive, approve an extension of
the Employment Period. In such event, the Employment Period shall
be extended to the third anniversary of the relevant Anniversary
Date.
(b) For all
purposes of this Agreement, the term "Remaining Unexpired
Employment Period" as of any date shall mean the period beginning
on such date and ending on the Anniversary Date on which the
Employment Period (as extended pursuant to Section 2(a) of this
Agreement) is then scheduled to expire.
(c) Nothing in
this Agreement shall be deemed to prohibit the Association from
terminating the Executive's employment at any time during the
Employment Period with or without notice for any reason; provided,
however, that the relative rights and obligations of the
Association and the Executive in the event of any such termination
shall be determined pursuant to this Agreement.
The Executive
shall serve as Executive Vice President of the Association, having
such power, authority and responsibility and performing such duties
as are prescribed by or pursuant to the By-Laws of the Association
and as are customarily associated with such position. The Executive
shall devote his full business time and attention (other than
during weekends, holidays, approved vacation periods, and periods
of illness or approved leaves of absence) to the business and
affairs of the Association and shall use his best efforts to
advance the interests of the Association.
In
consideration for the services to be rendered by the Executive
hereunder, the Association shall pay to him a salary at an initial
annual rate of FOUR HUNDRED NINETY EIGHT THOUSAND DOLLARS
($498,000) , payable in approximately equal
installments in
accordance with
the Association's customary payroll practices for senior officers.
At least annually during the Employment Period, the Board shall
review the Executive's annual rate of salary and may, in its
discretion, approve an increase therein. In no event shall the
Executive's annual rate of salary under this Agreement in effect at
a particular time be reduced without his or her prior written
consent and any such reduction in the absence of such consent shall
be a material breach of this Agreement. In addition to salary, the
Executive may receive other cash compensation from the Association
for services hereunder at such times, in such amounts and on such
terms and conditions as the Board may determine from time to
time.
|
|
Employee
Benefit Plans and Programs .
|
During the
Employment Period, the Executive shall be treated as an employee of
the Association and shall be entitled to participate in and receive
benefits under any and all qualified or non-qualified retirement,
pension, savings, profit-sharing or stock bonus plans, any and all
group life, health (including hospitalization, medical and major
medical), dental, accident and long term disability insurance
plans, and any other employee benefit and compensation plans
(including, but not limited to, any incentive compensation plans or
programs, stock option and appreciation rights plans and restricted
stock plans) as may from time to time be maintained by, or cover
employees of, the Association, in accordance with the terms and
conditions of such employee benefit plans and programs and
compensation plans and programs and consistent with the
Association's customary practices.
|
|
Indemnification and Insurance
.
|
(a) During the
Employment Period and for a period of six (6) years thereafter, the
Association shall cause the Executive to be covered by and named as
an insured under any policy or contract of insurance obtained by it
to insure its directors and officers against personal liability for
acts or omissions in connection with service as an officer or
director of the Association or service in other capacities at the
request of the Association. The coverage provided to the Executive
pursuant to this Section 6 shall be of the same scope and on the
same terms and conditions as the coverage (if any) provided to
other officers or directors of the Association.
(b) To the
maximum extent permitted under applicable law, during the
Employment Period and for a period of six (6) years thereafter, the
Association shall indemnify the Executive against, and hold him
harmless from any costs, liabilities, losses and exposures for acts
or omissions in connection with service as an officer or director
of the Association or service in other capacities at the request of
the Association, to the fullest extent and on the most favorable
terms and conditions that similar indemnification is offered to any
director or officer of the Association or any subsidiary or
affiliate thereof.
(a) The
Executive may serve as a member of the boards of directors of such
business, community and charitable organizations as he may disclose
to and as may be approved by the Board (which approval shall not be
unreasonably withheld); provided, however, that such service shall
not materially interfere with the performance of his duties under
this Agreement. The Executive may also engage in personal business
and investment activities which do not materially interfere with
the performance of his duties hereunder; provided, however, that
such activities are not prohibited under any code of conduct or
investment or securities trading policy established by the
Association and generally applicable to all similarly situated
executives.
(b) The
Executive may also serve as an officer or director of the Company
on such terms and conditions as the Association and the Company may
mutually agree upon, and such service shall not be deemed to
materially interfere with the Executive's performance of his duties
hereunder or otherwise result in a material breach of this
Agreement.
|
|
Working
Facilities and Expenses .
|
The Executive's
principal place of employment shall be at the Association's
executive offices at the address first above written, or at such
other location within Queens County or Nassau County, New York at
which the Association shall maintain its principal executive
offices, or at such other location as the Association and the
Executive may mutually agree upon. The Association shall provide
the Executive at his principal place of employment with a private
office, secretarial services and other support services and
facilities suitable to his or her position with the Association and
necessary or appropriate in connection with the performance of his
or her assigned duties under this Agreement. The Association shall
provide to the Executive for his or her exclusive use an automobile
owned or leased by the Association and appropriate to his position,
to be used in the performance of his or her duties hereunder,
including commuting to and from his personal residence. The
Association shall (i) reimburse the Executive for all expenses
associated with his or her business use of the aforementioned
automobile; (ii) reimburse the Executive for his or her ordinary
and necessary business expenses incurred in the performance of his
or her duties under this Agreement (including but not limited to
travel and entertainment expenses) that are excludible from the
Executive’s gross income for federal income tax purposes;
(iii) reimburse the Executive for fees for memberships in such
clubs and organizations and such other expenses as the Executive
and the Association shall mutually agree are necessary and
appropriate for business purposes, in each case upon presentation
to the Association of an itemized account of such expenses in such
form as the Association may reasonably require, each such
reimbursement payment to be made promptly following receipt of the
itemized account and in any event not later than the last day of
the calendar year following the calendar year in which the expense
was incurred. The Executive shall be responsible for the
payment of any taxes on account of his personal use of the
automobile provided by the Association and on account of any other
benefit provided herein.
|
|
Termination of Employment with Severance
Benefits .
|
(a) The
Executive shall be entitled to the severance benefits described
herein in the event that his employment with the Association
terminates during the Employment Period under any of the following
circumstances:
|
|
(i) the Executive's voluntary resignation from
employment with the Association within six (6) months
following:
|
|
|
(A) the failure of the Board to appoint or
re-appoint or elect or re-elect the Executive to the office of
Executive Vice President (or a more senior office) of the
Association;
|
|
|
(B) if the Executive is a member of the Board,
the failure of the stockholders of the Association to elect or
re-elect the Executive to the Board or the failure of the Board (or
the nominating committee thereof) to nominate the Executive for
such election or re-election;
|
|
|
(C) the expiration of a thirty (30) day period
following the date on which the Executive gives written notice to
the Association of its material failure, whether by amendment of
the Association's Charter or By-laws, action of the Board or the
Association's stockholders or otherwise, to vest in the Executive
the functions, duties, or responsibilities prescribed in Section 3
of this Agreement as of the date hereof, unless, during such thirty
(30) day period, the Association cures such failure in a manner
determined by the Executive, in his or her discretion, to be
satisfactory;
|
|
|
(D) the expiration of a thirty (30) day period
following the date on which the Executive gives written notice to
the Association of its material breach of any term, condition or
covenant contained in this Agreement (including, without
limitation, any reduction of the Executive's rate of base salary in
effect from time to time and any change in the terms and conditions
of any compensation or benefit program in which the Executive
participates which, either individually or together with other
changes, has a material adverse effect on the aggregate value of
his total compensation package), unless, during such thirty (30)
day period, the Association cures such failure in a manner
determined by the Executive, in his or her discretion, to be
satisfactory; or
|
|
|
(E) the relocation of the Executive's principal
place of employment, without his or her written consent, to a
location outside of Nassau County and Queens County, New
York;
|
|
|
(ii) the termination of the Executive's
employment with the Association for any other reason not described
in Section 10(a).
|
In such event
and subject to Section 27 of this Agreement, the Association shall
provide the benefits and pay to the Executive the amounts described
in Section 9(b).
(b) Upon the
termination of the Executive's employment with the Association
under circumstances described in Section 9(a) of this Agreement,
the Association shall pay and provide to the Executive (or, in the
event of the Executive's death following the Executive's
termination of employment, to his or her estate):
|
|
(i) his or her earned but unpaid compensation
(including, without limitation, all items which constitute wages
under Section 190.1 of the New York Labor Law and the payment of
which is not otherwise provided for under this Section 9(b)) as of
the date of the termination of his or her employment with the
Association, such payment to be made at the time and in the manner
prescribed by law applicable to the payment of wages but in any
event not later than thirty (30) days after termination of
employment;
|
|
|
(ii) the benefits, if any, to which he or she is
entitled as a former employee under the employee benefit plans and
programs and compensation plans and programs maintained for the
benefit of the Association's officers and employees, including the
annual bonus (if any) to which he or she is entitled under any
cash-based annual bonus or performance compensation plan in effect
for the year in which his or her termination occurs, to be paid at
the same time and on the terms and conditions (including but not
limited to achievement of performance goals) applicable under the
relevant plan;
|
|
|
(iii) continued group life, health (including
hospitalization, medical and major medical), dental, accident and
long term disability insurance benefits, in addition to that
provided pursuant to Section 9(b)(ii), and after taking into
account the coverage provided by any subsequent employer, if and to
the extent necessary to provide for the Executive, for the
Remaining Unexpired Employment Period, coverage (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) equivalent to the
coverage to which he or she would have been entitled under such
plans (as in effect on the date of his or her termination of
employment, or, if his or her termination of employment occurs
after a Change of Control, on the date of such Change of Control,
whichever benefits are greater), if he or she had continued working
for the Association during the Remaining Unexpired Employment
Period at the highest annual rate of salary or compensation, as
applicable, achieved during that portion of the Employment Period
which is prior to the Executive's termination of employment with
the Association;
|
|
|
(iv) thirty (30) days following the Executive's
termination of employment with the Association, a lump sum payment
in an amount representing an estimate of the salary that the
Executive would have earned if he or she had continued working for
the Association during the Remaining Unexpired Employment Period at
the highest annual rate of salary achieved during that portion of
the Employment Period
|
which is prior
to the Executive's termination of employment with the Association
(the "Salary Severance Payment"). The Salary Severance Payment
shall be computed using the following formula:
|
|
"SSP" is the amount of the Salary Severance
Payment, before the deduction of applicable federal, state and
local withholding taxes;
|
|
|
"BS" is the highest annual rate of salary
achieved during that portion of the Employment Period which is
prior to the Executive's termination of employment with the
Association;
|
|
|
"NY" is the Remaining Unexpired Employment
Period expressed as a number of years (rounded, if such period is
not a whole number, to the next highest whole number).
|
|
|
The Salary
Severance Payment shall be paid in lieu of all other payments of
salary provided for under this Agreement in respect of the period
following any such termination.
|
|
|
(v) a lump sum payment (the "DB Severance
Payment") in an amount equal to the excess, if any, of:
|
|
|
(A) the present value of the aggregate benefits
to which he or she would be entitled under any and all qualified
and non-qualified defined benefit pension plans maintained by, or
covering employees of, the Association, if he or she were 100%
vested thereunder and had continued working for the Association
during the Remaining Unexpired Employment Period, such benefits to
be determined as of the date of termination of employment by adding
to the service actually recognized under such plans an additional
period equal to the Remaining Unexpired Employment Period and by
adding to the compensation recognized under such plans for the most
recent year recognized all amounts payable pursuant to Sections
9(b)(i), (iv), (vii), (viii) and (ix) of this Agreement;
over
|
|
|
(B) the present value of the benefits to which
he or she is actually entitled under such defined benefit pension
plans as of the date of his or her termination;
|
The DB
Severance Payment shall be computed using the following
formula:
|
|
"DBSP" is the amount of the DB Severance
Payment, before the deduction of applicable federal, state and
local withholding taxes;
|
|
|
"SEVLS" is the sum of the present value of the
defined benefit pension benefits that have been or would be accrued
by the Executive under all qualified and non-qualified defined
benefit pension plans of which the Association or any of its
affiliates or subsidiaries are a sponsor and in which the Executive
is or, but for the completion of any service requirement that would
have been completed during the Remaining Unexpired Employment
Period, would be a participant utilizing the following
assumptions:
|
|
|
(I) the executive is 100% vested in the plans
regardless of actual service,
|
|
|
(II) the benefit to be valued shall be a single
life annuity with monthly payments due on the first of each month
and with a guaranteed payout of not less than 120
payments,
|
|
|
(III) the calculation shall be made utilizing
the same mortality table and interest rate as would be utilized by
the plan on the date of termination as if the calculation were
being made pursuant to Section 417(e)(3) of the Code, as
amended;
|
|
|
(IV) for purpose of calculating the Executive's
monthly or annual benefit under the defined benefit plans,
additional service equal to the Remaining Unexpired Employment
Period (rounded up to the next whole year if such period is not a
whole number when expressed in years) shall be added to the
Executive's actual service to calculate the amount of the benefit;
and
|
|
|
(V) for purpose of calculating the Executive's
monthly or annual benefit under the defined benefit plans, the
following sums shall be added to the Executive's compensation
recognized under such plans for the most recent year
recognized:
|
|
|
(1) payments
made pursuant to Section 9(b)(i);
|
|
|
(2) the Salary
Severance Payment;
|
|
|
(3) the Bonus
Severance Payment;
|
|
|
(4) the Option
Surrender Payment; and
|
|
|
(5) the RRP
Surrender Payment.
|
|
|
"LS" is the sum of the present value of the
defined benefit pension benefits that are vested benefits actually
accrued by the Executive under all qualified and non-qualified
defined benefit pension plans maintained by, or covering employees
of, the Association or any of its affiliates or subsidiaries in
which the Executive is or, but for the completion of any service
requirement, would be a participant utilizing the following
assumptions:
|
(I) the benefit to be valued shall be a single
life annuity with monthly payments due on the first day of each
month and with a guaranteed payout of not less than 120 payments,
and
(II) the calculation shall be made utilizing the
same mortality table and interest rate as would be utilized by the
plan on the date of termination as if the calculation were being
made pursuant to Section 417(e)(3) of the Code;
The DB
Severance Payment shall be converted into the same form, and paid
at the same time, and in the same manner, as benefits under the
corresponding non-qualified plan.
|
|
(vi) a lump sum payment (the "Defined
Contribution Severance Payment") equal to the sum of:
|
|
|
(A) an estimate of the additional employer
contributions to which he or she would have been entitled under any
and all qualified and non-qualified defined contribution pension
plans, excluding the employee stock ownership plans, maintained by,
or covering employees of, the Association or any of its affiliates
or subsidiaries as if he or she were 100% vested thereunder and had
continued working for the Association during the Remaining
Unexpired Employment Period (the "401K Severance Payment");
and
|
|
|
(B) an estimate of the value of the additional
assets which would have been allocable to him or her through debt
service or otherwise under any and all qualified and non-qualified
employee stock ownership plans, maintained by, or covering
employees of, the Association or any of its affiliates or
subsidiaries as if he or she were 100% vested thereunder and had
continued working for the Association during the Remaining
Unexpired Employment Period, based on the fair market value of such
assets at termination of employment (the "ESOP Severance
Payment").
|
The Defined
Contribution Severance Payment shall be calculated as
follows:
where:
|
|
"DCSP" is the amount of the Defined Contribution
Severance Payment, before the deduction of applicable federal,
state and local withholding taxes;
|
|
|
"401KSP" is the amount of the 401K Severance
Payment, before the deduction of applicable federal, state and
local withholding taxes; and
|
|
|
"ESOPSP" is the amount of the ESOP Severance
Payment, before the deduction of applicable federal, state and
local withholding taxes.
|
|
|
The 401KSP
shall be calculated as follows:
|
401KSP = (401KC x
NY) +UVB
where:
|
|
"401KC" is the sum of the Association
Contributions as defined in the Association's Incentive Savings
Plan or, if made under another defined contribution pension plan
other than an employee stock ownership plan, the comparable
contribution made for the benefit of the Executive during the one
year period which shall end on the date of his or her termination
of his or her employment with the Association; and
|
|
|
"NY" is the Remaining Unexpired Employment
Period expressed as a number of years (rounded, if such period is
not a whole number, to the next highest whole number);
and
|
|
|
“UVB” is the actual balance credited
to the Executive's account under the applicable plan at the date of
his or her termination of employment that is not vested and does
not become vested as a consequence of such termination of
employment.
|
The ESOPSP
shall be calculated as follows:
ESOPSP = (((ALL
x FMV) + C) x NY) + UVB
where:
|
|
“ALL" is the sum of the number of shares
of the Association's common stock or, if applicable, phantom shares
of such stock by whatever term it is described allocated to the
Executive's accounts under all qualified and non-qualified employee
stock ownership plans maintained by the Association or any of its
affiliates or subsidiaries during or for the last complete plan
year in which the Executive participated in such plans and received
such an allocation whether the allocation occurred as a result of
contributions made by the Association, the payment by the
Association or any of its affiliates or subsidiaries of any
loan
|
payments under
a leveraged employee stock ownership plan, the allocation of
forfeitures under the terms of such plan or as a result of the use
of cash or earnings allocated to the Executives account during such
plan year to make loan payments that result in share allocations,
provided however, that excluded shall be any shares or phantom
shares allocated to the Executive's account under any qualified and
non-qualified employee stock ownership plans maintained by the
Association or any of its affiliates or subsidiaries solely as a
result of the termination of such plans, provided further, that if
the shares allocated are not shares of the Association's common
stock or phantom shares of such stock than shares of whatever
securities are so allocated shall be utilized, and provided
further, that in the event that there shall be any shares or
phantom shares allocated during the then current plan year or the
last complete plan year to the Executive's account under any
qualified and non-qualified employee stock ownership plans
maintained by the Association or any of its affiliates or
subsidiaries solely as a result of the termination of such plans,
the ALL shall be reduced (but not to an amount less than zero (0))
by an amount calculated by multiplying the number of shares or
phantom shares allocated to the Executive's account solely as a
result of the termination of such plans times the FMV utilized to
calculate the ESOPSP;
|
|
"C" is the sum of all cash allocated to the
Executive's accounts under all qualified and non-qualified employee
stock ownership plans maintained by the Association during or for
the last complete plan year in which the Executive participated in
such plans whether the allocation occurred as a result of
contributions made by the Association, the payment by the Company
or the Association of any loan payments under a leveraged employee
stock ownership plan or the allocation of forfeitures under the
terms of such plan during such plan year;
|
|
|
"FMV" is the closing price of the Association's
common stock on The New York Stock Exchange (“NYSE”) or
on whatever other stock exchange or market such stock is publicly
traded on the date the Executive's employment terminates or, if
such day is not a day on which such securities are traded, on the
most recent preceding trading day on which a trade occurs, provided
however that if the security allocated to the Executive's account
during the last completed plan year is other than the Association's
common stock the closing price of such security on the date the
Executive's employment terminates shall be utilized.
|
|
|
"NY" is the Remaining Unexpired Employment
Period expressed as a number of years (rounded, if such period is
not a whole number, to the next highest whole number);
and
|
|
|
“UVB” is the actual balance credited
to the Executive's account under the applicable plan at the date of
his or her termination of employment that is not vested and does
not become vested as a consequence of such termination of
employment.
|
The Defined
Contribution Severance Payment shall be converted into the same
form, and paid at the same time, and in the same manner, as
benefits under the corresponding non-qualified plan. and, if there
is no such non-qualified plan in effect on the date of this
Agreement, in a lump sum.
|
|
(vii) thirty (30) days following the Executive's
termination of employment with the Association, the Association
shall make a lump sum payment to the Executive in an amount equal
to the estimated potential annual bonuses or incentive compensation
that the Executive could have earned if the Executive had continued
working for the Association during the Unexpired Employment Period
at the highest annual rate of salary achieved during that portion
of the Employment Period which is prior to the Executive's
termination of employment with the Association (the "Bonus
Severance Payment"). The Bonus Severance Payment shall be computed
using the following formula:
|
BSP = (BS x TIO
x AP x NY)
|
|
"BSP" is the amount of the Bonus Severance
Payment, before the deduction of applicable federal, state and
local withholding taxes;
|
|
|
"BS" is the highest annual rate of salary
achieved during that portion of the Employment Period which is
prior to the Executive's termination of employment with the
Association;
|
|
|
"TIO" is the highest target incentive
opportunity established by the Compensation Committee of the Board
for the Executive pursuant to the Astoria Financial Corporation
Executive Officer Annual Incentive Plan during that portion of the
Employment Period which is prior to the Executive's termination of
employment with the Association;
|
|
|
"AP" is the highest award percentage available
to the Executive with respect to the financial performance of the
Association (expressed as a percentage of the TIO) established by
the Compensation Committee of the Board for the Executive pursuant
to the Astoria Financial Corporation Executive Officer Annual
Incentive Plan during the period during that portion of the
Employment Period which is prior to the Executive's termination of
employment with the Association; and
|
|
|
"NY" is the Remaining Unexpired Employment
Period expressed as a number of years (rounded, if such period is
not a whole number, to the next highest whole number).
|
|
|
(viii) at the election of the Association made
within thirty (30) days following the Executive's termination of
employment with the Association, upon the
|
surrender of
options or appreciation rights issued to the Executive under any
stock option and appreciation rights plan or program maintained by,
or covering employees of, the Association, a lump sum payment (the
"Option Surrender Payment"). The Option Surrender Payment shall be
calculated as follows:
where:
|
|
"OSP" is the amount of the Option Surrender
Payment, before the deduction of applicable federal, state and
local withholding taxes;
|
"FMV" is the closing price of the Association's
common stock on the NYSE, or on whatever other stock exchange or
market such stock is publicly traded, on the date the Executive's
employment terminates or, if such day is not a day on which such
securities are traded, on the preceding trading day on which a
trade occurs, provided however that if the option or stock
appreciation right is for a security other than the Association's
comm
|
