Exhibit 10.30
ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION
EMPLOYMENT AGREEMENT WITH EXECUTIVE OFFICER
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
December 1, 2003 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, GARY T. MCCANN, an individual residing at 17
Shoreham Road, Massapequa, New York 11758 (the "Executive").
WITNESSETH:
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 Executive currently has a Change of Control Severance
Agreement with the Association dated January 1, 2000 which the Executive and the
Association wish to terminate and replace with this Agreement; 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;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and conditions hereinafter set forth, the Association and the Executive hereby
terminate in its entirety the Change of Control Severance Agreement by and
between the Association and the Executive dated as of January 1, 2000 and
replace such Change of Control Severance Agreement in all respects and manner
with this Agreement so as to provide as follows from and after the date hereof:
Section 1. Employment.
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.
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Section 2. 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 date of this Agreement
and ending on the day before the third anniversary date of this
Agreement. Prior to the first anniversary of the date of this
Agreement and on each anniversary date thereafter (each an
"Anniversary Date) the Board of Directors of the Association (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 day before
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 day before 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.
Section 3. Duties.
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 or her
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 or her best efforts to
advance the interests of the Association.
Section 4. Cash Compensation.
In consideration for the services to be rendered by the Executive
hereunder, the Association shall pay to him or her a salary at an initial annual
rate of TWO HUNDRED TWELVE THOUSAND DOLLARS ($212,000), payable in approximately
equal installments in accordance with the Association's customary payroll
practices for senior officers. Prior to each Anniversary Date occurring 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 addition to
salary, the Executive may
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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.
Section 5. 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.
Section 6. 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 or her
harmless from any costs, liabilities, losses and exposures 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. This Section 6(b)
shall not be applicable where Section 18 is applicable.
Section 7. Other Activities.
(a) The Executive may serve as a member of the boards of directors of such
business, community and charitable organizations as he or she 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 or her
duties under this Agreement. The Executive may also engage in personal
business and investment activities which do not materially
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interfere with the performance of his or her 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 or her
duties hereunder or otherwise result in a material breach of this
Agreement.
Section 8. 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 or her 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 or her position, to be used in the performance of his or her duties
hereunder, including commuting to and from his or her personal residence. The
Association shall reimburse the Executive for his or her ordinary and necessary
business expenses, including, without limitation, all expenses associated with
his or her business use of the aforementioned automobile, fees for memberships
in such clubs and organizations as the Executive and the Association shall
mutually agree are necessary and appropriate for business purposes, and his or
her travel and entertainment expenses incurred in connection with the
performance of his or her duties under this Agreement, in each case upon
presentation to the Association of an itemized account of such expenses in such
form as the Association may reasonably require.
Section 9. Termination of Employment with Severance Benefits.
(a) The Executive shall be entitled to the severance benefits described
herein in the event that his or her 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
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office) of the Association;
(B) if the Executive is or becomes 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 Organization Certificate 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;
(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 or her total
compensation package), unless, during such thirty (30) day
period, the Association cures such failure; 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):
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(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;
(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) within 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 = BS x NY
where:
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"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) within thirty (30) days following the Executive's termination of
employment with the Association, 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 = SEVLS - LS
where:
"DBSP" is the amount of the DB Severance Payment, before the
deduction
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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 day of each
month and with a guaranteed payout of not less than 120
monthly 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)(A)(ii) of the Internal Revenue Code, as
amended, (the "Code");
(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.
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"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
Company 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
monthly 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)(A)(ii) of the Code;
(vi) within thirty (30) days following the Executive's termination of
employment with the Association, 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:
DCSP = 401KSP + ESOPSP
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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:
401SP = (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;
"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-
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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
Association 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 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
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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.
(vii) within 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)
where:
"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 (expressed as a
percentage of base salary) 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 Company
(expressed as a percentage of the TIO) established by the
Compensation Committee of the Board for the
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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:
OSP = (FMV - EP) x N
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 New York Stock Exchange, 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
option or stock appreciation right is for a security other than
the Association's common stock, the fair market value of a share
of stock of the same class as the stock subject to the option or
appreciation right, determined as of the date of termination of
employment shall be utilized;
"EP" is the exercise price per share for such option or
appreciation right, as specified in or under the relevant plan or
program; and
"N" is the number of shares with respect to which options or
appreciation rights are being surrendered.
For purposes of determining the Option Severance Payment and for
purposes of determining the Executive's right following his or
her termination of employment with the Association to exercise
any options or appreciation
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rights not surrendered pursuant hereto, the Executive shall be
deemed fully vested in all options and appreciation rights under
any stock option or appreciation rights plan or program
maintained by, or covering employees of, the Association, even if
he or she is not vested under such plan or program;
(ix) 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 any shares awarded to the
Executive under any restricted stock plan maintained by, or
covering employees of, the Association, a lump sum payment (the
"RRP Surrender Payment") The RRP Surrender Payment shall be
calculated as follows:
RSP = FMV x N
where:
"RSP" is the amount of the RRP 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 New York Stock Exchange, 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
restricted stock is a security other than the Association's
common stock, the fair market value of a share of stock of the
same class as the stock granted under such plan, determined as of
the date of termination of employment shall be utilized; and
"N" is the number of shares which are being surrendered.
For purposes of determining the RRP Surrender Payment and for
purposes of determining the Executive's right following his or
her termination of employment with the Association to any stock
not surrendered pursuant hereto, the Executive shall be deemed
fully vested in all shares awarded under any restricted stock
plan maintained by, or covering employees of, the Association,
even if he or she is not vested under such plan.
The Salary Severance Payment, the DB Severance Payment, the Defined
Contribution Severance Payment, the Bonus Severance Payment, the
Option Surrender Payment and the RRP Surrender Payment shall be
computed at the expense of the Association by an attorney of the firm
of Thacher Proffitt & Wood, Two World Financial Center, New York, New
York 10281 or, if such firm is
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unavailable or unwilling to perform such calculation, by a firm of
independent certified public accountants selected by the Executive and
reasonably satisfactory to the Association (the "Computation
Advisor"). The determination of the Computation Advisor as to the
amount of such payments shall be final and binding in the absence of
manifest error.
The Association and the Executive hereby stipulate that the damages
which may be incurred by the Executive following any such termination
of employment are not capable of accurate measurement as of the date
first above written and that the payments and benefits contemplated by
this Section 9(b) constitute reasonable damages under the
circumstances and shall be payable without any requirement of proof of
actual damage and without regard to the Executive's efforts, if any,
to mitigate damages. The Association and the Executive further agree
that the Association may condition the payment of the Salary Severance
Payment, the DB Severance Payment, the Defined Contribution Severance
Payment, the Bonus Severance Payment, the Option Surrender Payment and
the RRP Surrender Payment on the receipt of the Executive's
resignation from any and all positions which he or she holds as an
officer, director or committee member with respect to the Association,
the Association or any subsidiary or affiliate of either of them.
Section 10. Termination without Additional Association Liability.
(a) In the event that the Executive's employment with the Association
shall terminate during the Employment Period on account of:
(i) the discharge of the Executive for Cause, which, for purposes of
this Agreement shall mean personal dishonesty, incompetence,
wilful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, wilful
violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease and desist order,
or any material breach of this Agreement, in each case measured
against standards generally prevailing at the relevant time in
the savings and community banking industry;
(ii) the Executive's voluntary resignation from employment with the
Association for reasons other than those specified in Section
9(a) or 11(b);
(iii) the Executive's death;
(iv) a determination that the Executive is Disabled;
(v) the Executive's termination of employment for any reason at or
after attainment of mandatory retirement age under the
Association's mandatory
Page 15 of 28
retirement policy for executive officers in effect as of the date
of this Agreement;
then the Association, except as otherwise specifically provided
herein, shall have no further obligations under this Agreement, other
than the payment to the Executive (or, in the event of his or her
death, to his or her estate) of the amounts or benefits provided in
Section 9(b)(i) and (ii) of this Agreement (the "Standard Termination
Entitlements").
(b) The cessation of employment of the Executive shall not be deemed to be
for Cause within the meaning of Section 10(a)(i) unless and until:
(i) the Board, by the affirmative vote of 75% of its entire
membership, determines that the Executive is guilty of the
conduct described in Section 10(a)(i) above measured against
standards generally prevailing at the relevant time in the
savings and community banking industry;
(ii) prior to the vote contemplated by Section 10(b)(i), the Board
shall provide the Executive with notice of the Association's
intent to discharge the Executive for Cause, detailing with
particularity the facts and circumstances which are alleged to
constitute Cause (the "Notice of Intent to Discharge"); and
(iii) after the giving of the Notice of Intent to Discharge and before
the taking of the vote contemplated by Section 10(b)(i), the
Executive, together with the Executive's legal counsel, if the
Executive so desires, are afforded a reasonable opportunity to
make both written and oral presentations before the Board for
the purpose of refuting the alleged grounds for Cause for the
Executive's discharge; and
(iv) after the vote contemplated by Section 10(b)(i), the Association
has furnished to the Executive a notice of termination which
shall specify the effective date of the Executive's termination
of employment (which shall in no event be earlier than the date
on which such notice is deemed given) and include a copy of a
resolution or resolutions adopted by the Board, certified by its
corporate secretary, authorizing the termination of the
Executive's employment with Cause and stating with particularity
the facts and circumstances found to constitute Cause for the
Executive's discharge (the "Final Discharge Notice").
If the Executive, during the ninety (90) day period commencing on the
delivery by the Association to the Executive of the Notice of Intent
to Discharge specified in Section 10(b)(ii), resigns his or her
employment with the Association prior to the delivery to the Executive
by the Association of the Final Discharge Notice specified
Page 16 of 28
in Section 10(b)(iv), then the cessation of employment of the
Executive shall be deemed to be for Cause.
Following the giving of a Notice of Intent to Discharge, the Bank may
temporarily suspend the Executive's duties and authority and, in such
event, may also suspend the payment of salary and other cash
compensation, but not the Executive's participation in retirement,
insurance and other employee benefit plans. If the Executive is not
discharged or is discharged without Cause within forty-five (45) days
after the giving of a Notice of Intent to Discharge, payments of
salary and cash compensation shall resume, and all payments withheld
during the period of suspension shall be promptly restored. If the
Executive is discharged with Cause not later than forty-five (45) days
after the giving of the Notice of Intent to Discharge, all payments
withheld during the period of suspension shall be deemed forfeited and
shall not be included in the Standard Termination Entitlements. If a
Final Discharge Notice is given later than forty-five (45) days, but
sooner than ninety (90) days, after the giving of the Notice of Intent
to Discharge, all payments made to the Executive during the period
beginning with the giving of the Notice of Intent to Discharge and
ending with the Executive's discharge with Cause shall be retained by
the Executive and shall not be applied to offset the Standard
Termination Entitlements. If the Bank does not give a Final Discharge
Notice to the Executive within ninety (90) days after giving a Notice
of Intent to Discharge, the Notice of Intent to Discharge shall be
deemed withdrawn and any future action to discharge the Executive with
Cause shall require the giving of a new Notice of Intent to Discharge.
If the Executive resigns pursuant to Section 10(b), the Executive
shall forfeit his or her right to suspended amounts that have not been
restored as of the date of the Executive's resignation or notice of
resignation, whichever is earlier.
(c) The Association may terminate the Executive's employment on the basis
that the Executive is Disabled during the Employment Period upon a
determination by the Board, by the affirmative vote of 75% of its
entire membership, acting in reliance on the written advice of a
medical professional acceptable to it, that the Executive is suffering
from a physical or mental impairment which, at the date of the
determination, has prevented the Executive from performing the
Executive's assigned duties on a substantially full-time basis for a
period of at least one hundred and eighty (180) days during the period
of one (1) year ending with the date of the determination or is likely
to result in death or prevent the Executive from performing the
Executive's assigned duties on a substantially full-time basis for a
period of at least one hundred and eighty (180) days during the period
of one (1) year beginning with the date of the determination. In such
event:
(A) The Association shall pay and provide the Standard
Termination Entitlements to the Executive;
Page 17 of 28
(B) In addition to the Standard Termination Entitlements, the
Association shall continue to pay to the Executive the
Executive's base salary, at the annual rate in effect for
the Executive immediately prior to the termination of the
Executive's employment, during a period ending on the
earliest of:
(I) the expiration of one hundred and eighty (180) days
after the date of termination of the Executive's
employment;
(II) the date on which long-term disability insurance
benefits are first payable to the Executive under any
long-term disability insurance plan covering the
Executive; or
(III) the date of the Executive's death.
A termination of employment due to Disability under this Section
shall be effected by a notice of termination given to the
Executive by the Association and shall take effect on the later
of the effective date of termination specified in such notice or,
if no such date is specified, the date on which the notice of
termination is deemed given to the Executive.
Section 11. Termination Upon or Following a Change of Control.
(a) A Change of Control of the Association ("Change of Control") shall be
deemed to have occurred upon the happening of any of the following
events:
(i) approval by the stockholders of the Association of a transaction
that would result in the reorganization, merger or consolidation
of the Association with one or more other persons, other than a
transaction following which:
(A) at least 51% of the equity ownership interests of the entity
resulting from such transaction are beneficially owned
(within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act")) in substantially the same relative proportions by
persons who, immediately prior to such transaction,
beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) at least 51% of the
outstanding equity ownership interests in the Association;
and
(B) at least 51% of the securities entitled to vote generally in
the election of directors of the entity resulting from such
transaction are beneficially owned (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) in
substantially the same relative
Page 18 of 28
proportions by persons who, immediately prior to such
transaction, beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) at least 51 % of
the securities entitled to vote generally in the election of
directors of the Association;
(ii) the acquisition of all or substantially all of the assets of the
Association or beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of the
outstanding securities of the Association entitled to vote
generally in the election of directors by any person or by any
persons acting in concert, or approval by the stockholders of the
Association of any transaction which would result in such an
acquisition;
(iii) a complete liquidation or dissolution of the Association, or
approval by the stockholders of the Association of a plan for
such liquidation or dissolution;
(iv) the occurrence of any event if, immediately following such event,
at least 50% of the members of the Board do not belong to any of
the following groups:
(A) individuals who were members of the Board on the date of
this Agreement; or
(B) individuals who first became members of the Board after the
date of this Agreement either:
(I) upon election to serve as a member of the Board by
affirmative vote of three-quarters of the members of
such Board, or of a nominating committee thereof, in
office at the time of such first election; or
(II) upon election by the stockholders of the Association to
serve as a member of the Board, but only if nominated
for election by affirmative vote of three-quarters of
the members of the Board, or of a nominating committee
thereof, in office at the time of such first
nomination;
provided, however, that such individual's election or
nomination did not result from an actual or threatened
election contest (within the meaning of Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents
(within the meaning of Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) other than by or on
behalf of
Page 19 of 28
the Board; or
(v) any event which would be described in Section 11(a)(i), (ii),
(iii) or (iv) if the term "Company" were substituted for the term
"Association" therein or the term "Board of Directors of the
Company" were substituted for the term "Board".
In no event, however, shall a Change of Control be deemed to have
occurred as a result of any acquisition of securities or assets of the
Association, the Association, or an affiliate or subsidiary of either
of them, by the Association, the Association, or a subsidiary of
either of them, or by any employee benefit plan maintained by any of
them. For purposes of this Section 11 (a), the term "person" shall
have the meaning assigned to it under Sections 13(d)(3) or 14(d)(2) of
the Exchange Act.
(b) In the event of a Change of Control, the Executive shall be entitled
to the payments and benefits contemplated by Section 9(b) in the event
of his or her termination of employment with the Association under any
of the circumstances described in Section 9(a) of this Agreement or
under any of the following circumstances:
(i) resignation, voluntary or otherwise, by the Executive at any
time during the Employment Period within six (6) months
following his or her demotion, loss of title, office or
significant authority or responsibility or following any
reduction in any element of his or her package of compensation
and benefits;
(ii) resignation, voluntary or otherwise, by the Executive at any
time during the Employment Period within six (6) months
following any relocation of his or her principal place of
employment or any change in working conditions at such
principal place of employment which the Executive, in his or
her reasonable discretion, determines to be embarrassing,
derogatory or otherwise adverse;
(iii) resignation, voluntary or otherwise, by the Executive at any
time during the Employment Period within six (6) months
following the failure of any successor to the Association in
the Change of Control to include the Executive in any
compensation or benefit program maintained by it or covering
any of its executive officers, unless the Executive is already
covered by a substantially similar plan of the Association
which is at least as favorable to him or her; or
(iv) resignation, voluntary or otherwise, for any reason whatsoever
during the Employment Period within six months following the
expiration of a transition period of thirty (30) days beginning
on the effective date of the Change of Control (or for such
longer period, not to exceed ninety (90) days beginning
Page 20 of 28
on the effective date of the Change of Control, as the
Association or its successor may reasonably request) to
facilitate a transfer of management responsibilities.
Section 12. Covenant Not To Compete.
The Executive hereby covenants and agrees that, in the event of his or her
termination of employment with the Association prior to the expiration of the
Employment Period, for a period of one (1) year following the date of his or her
termination of employment with the Association (or, if less, for the Remaining
Unexpired Employment Period), the Executive shall not, without the written
consent of the Association, become an officer, employee, consultant, director or
trustee of any savings bank, savings and loan association, savings and loan
holding Association, bank or bank holding Association, or any direct or indirect
subsidiary or affiliate of any such entity, that entails working in any city,
town or county in which the Association or the Association has an office or has
filed an application for regulatory approval to establish an office, determined
as of the effective date of the Executive's termination of employment; provided,
however, that this Section 12 shall not apply if the Executive's employment is
terminated for the reasons set forth in Section 9(a); and provided, further,
that if the Executive's employment shall be terminated on account of Disability
as provided in Section 10(c) of this Agreement, this Section 12 shall not
prevent the Executive from accepting any position or performing any services if:
(a) he or she first offers, by written notice, to accept a similar
position with or perform similar services for the Association on
substantially the same terms and conditions and
(b) the Association declines to accept such offer within ten (10) days
after such notice is given.
Section 13. Confidentiality.
Unless the Executive obtains the prior written consent of the Association,
the Executive shall keep confidential and shall refrain from using for the
benefit of the Executive or any person or entity other than the Association, any
entity which is a subsidiary of the Association or any entity which the
Association is a subsidiary of, any material document or information obtained
from the Association, or from its affiliates or subsidiaries, in the course of
the Executive's employment with any of them concerning their properties,
operations or business (unless such document or information is readily
ascertainable from public or published information or trade sources or has
otherwise been made available to the public through no fault of his or her own)
until the same ceases to be material (or becomes so ascertainable or available);
provided, however, that nothing in this Section 13 shall prevent the Executive,
with or without the Association's consent, from participating in or disclosing
documents or information in connection with any judicial or administrative
investigation, inquiry or proceeding to the extent that such participation or
disclosure is required under applicable law.
Page 21 of 28
Section 14. Solicitation.
The Executive hereby covenants and agrees that, for a period of one (1)
year following the Executive's termination of employment with the Association,
he or she shall not, without the written consent of the Association, either
directly or indirectly:
(a) solicit, offer employment to or take any other action intended, or
that a reasonable person acting in like circumstances would expect, to
have the effect of causing any officer or employee of the Company, the
Association or any affiliate or subsidiary of ether of them, to
terminate his or her employment and accept employment or become
affiliated with, or provide services for compensation in any capacity
whatsoever to, any savings bank, savings and loan association, bank,
bank holding Association, savings and loan holding Association, or
other institution engaged in the business of accepting deposits and
making loans, doing business in any city, town or county in which the
Association or the Company has an office or has filed an application
for regulatory approval to establish an office;
(b) provide any information, advice or recommendation with respect to any
such officer or employee to any savings bank, savings and loan
association, bank, bank holding company, savings and loan holding
company, or other institution engaged in the business of accepting
deposits and making loans, doing business in any city, town or county
in which the Association or the Company has an office or has filed an
application for regulatory approval to establish an office that is
intended, or that a reasonable person acting in like circumstances
would expect, to have the effect of causing any officer or employee of
the Company, the Association, or any affiliate or subsidiary of either
of them, to terminate his or her employment and accept employment,
become affiliated with or provide services for compensation in any
capacity whatsoever to any such savings bank, savings and loan
association, bank, bank holding company, savings and loan holding
company or other institution engaged in the business of accepting
deposits and making loans; or
(c) solicit, provide any information, advice or recommendation or take any
other action intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any customer
of the Company, the Association, or any affiliate or subsidiary of
either of them to terminate an existing business or commercial
relationship with the Company, the Association, or any affiliate or
subsidiary of either of them.
Section 15. No Effect on Employee Benefit Plans or Programs.
The termination of the Executive's employment during the term of this
Agreement or thereafter, whether by the Association or by the Executive, shall
have no effect on the rights and obligations of the parties hereto under the
Association's qualified or non-qualified retirement,
Page 22 of 28
pension, savings, thrift, profit-sharing or stock bonus plans, group life,
health (including hospitalization, medical and major medical), dental, accident
and long term disability insurance plans or such other employee benefit plans or
programs, or compensation plans or programs, as may be maintained by, or cover
employees of, the Association from time to time.
Section 16. Successors and Assigns.
This Agreement will inure to the benefit of and be binding upon the
Executive, his or her legal representatives and testate or intestate
distributees, and the Association and its successors and assigns, including any
successor by merger or consolidation or a statutory receiver or any other person
or firm or corporation to which all or substantially all of the assets and
business of the Association may be sold or otherwise transferred. Failure of the
Association to obtain from any successor its express written assumption of the
Association's obligations under this Agreement at least sixty (60) days in
advance of the scheduled effective date of any such succession shall be deemed a
material breach of this Agreement.
Section 17. Notices.
Any communication required or permitted to be given under this Agreement,
including any notice, direction, designation, consent, instruction, objection or
waiver, shall be in writing and shall be deemed to have been given at such time
as it is delivered personally, or five (5) days after mailing if mailed, postage
prepaid, by registered or certified mail, return receipt requested, addressed to
such party at the address listed below or at such other address as one such
party may by written notice specify to the other party:
If to the Executive:
Gary T. McCann
17 Shoreham Road
Massapequa, New York 11758
If to the Association:
Astoria Federal Savings and Loan Association
One Astoria Federal Plaza
Lake Success, New York 11042-1085
Attention: General Counsel
with a copy to:
Thacher Proffitt & Wood
Two World Financial Center
Page 23 of 28
New York, New York 10281
Attention: W. Edward Bright, Esq.
Section 18. Indemnification for Attorneys' Fees.
The Association shall indemnify, hold harmless and defend the Executive
against reasonable costs, including legal fees, incurred by him or her in
connection with or arising out of any action, suit or proceeding in which he or
she may be involved, as a result of his or her efforts, in good faith, to defend
or enforce the terms of this Agreement; provided, however, that in the case of
any action, suit or proceeding instituted prior to a Change of Control, the
Executive shall have substantially prevailed on the merits pursuant to a
judgment, decree or order of a court of competent jurisdiction or of an
arbitrator in an arbitration proceeding, or in a settlement. For purposes of
this Agreement, any settlement agreement which provides for payment of any
amounts in settlement of the Association's obligations hereunder shall be
conclusive evidence of the Executive's entitlement to indemnification hereunder,
and any such indemnification payments shall be in addition to amounts payable
pursuant to such settlement agreement, unless such settlement agreement
expressly provides otherwise.
Section 19. Severability.
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
Section 20. Waiver.
Failure to insist upon strict compliance with any of the terms, covenants
or conditions hereof shall not be deemed a waiver of such term, covenant, or
condition. A waiver of any provision of this Agreement must be made in writing,
designated as a waiver, and signed by the party against whom its enforcement is
sought. Any waiver or relinquishment of any right or power hereunder at any one
or more times shall not be deemed a waiver or relinquishment of such right or
power at any other time or times.
Section 21. Counterparts.
This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same Agreement.
Section 22. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the federal laws of the United States and, to the extent that
federal law is inapplicable, in accordance with the laws of the State of New
York applicable to contracts entered into and to be performed
Page 24 of 28
entirely within the State of New York.
Section 23. Headings and Construction.
The headings of sections in this Agreement are for convenience of reference
only and are not intended to qualify the meaning of any section. Any reference
to a section number shall refer to a section of this Agreement, unless otherwise
stated.
Section 24. Entire Agreement: Modifications.
This instrument contains the entire agreement of the parties relating to
the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof. No modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
Section 25. Survival.
The provisions of any sections of this Agreement which by its terms
contemplates performance after the expiration or termination of this Agreement
(including, but not limited to, Sections 6, 9, 10, 11, 12, 13, 14, 15, 16, 17,
18, 20, 26, 27 and 28) shall survive the expiration of the Employment Period or
termination of this Agreement.
Section 26. Equitable Remedies.
The Association and the Executive hereby stipulate that money damages are
an inadequate remedy for violations of Sections 6(a), 12, 13 or 14 of this
Agreement and agree that equitable remedies, including, without limitations, the
remedies of specific performance and injunctive relief, shall be available with
respect to the enforcement of such provisions.
Section 27. Required Regulatory Provisions.
The following provisions are included for the purposes of complying with
various laws, rules and regulations applicable to the Association:
(a) Notwithstanding anything herein contained to the contrary, in no event
shall the aggregate amount of compensation payable to the Executive
pursuant to Section 9(b) of this Agreement (exclusive of amounts
described in Section 9(b)(i), (ii), (viii) or (ix)) exceed three times
the Executive's average annual total compensation for the last five
consecutive calendar years to end prior to the Executive's termination
of employment with the Association (or for the Executive's entire
period of employment with the Association if less than five calendar
years).
(b) Notwithstanding anything herein contained to the contrary, any
payments to the
Page 25 of 28
Executive by the Association, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with
Section 18(k) of the Federal Deposit Insurance Act ("FDI Act"), 12
U.S.C. 'SS' 1828(k), and any regulations promulgated thereunder.
(c) Notwithstanding anything herein contained to the contrary, if the
Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the affairs of the Association
pursuant to a notice served under Section 8(e)(3) or 8(g)(1) of the
FDI Act, 12 U.S.C. 'SS' 1818(e)(3) or 1818(g)(1), the Association's
obligations under this Agreement shall be suspended as of the date of
service of such notice, unless stayed by appropriate proceedings. If
the charges in such notice are dismissed, the Association, in its
discretion, may (i) pay to the Executive all or part of the
compensation withheld while the Association's obligations hereunder
were suspended and (ii) reinstate, in whole or in part, any of the
obligations which were suspended.
(d) Notwithstanding anything herein contained to the contrary, if the
Executive is removed and/or permanently prohibited from participating
in the conduct of the Association's affairs by an order issued under
Section 8(e)(4) or 8(g)(1) of the FDI Act, 12 U.S.C. 'SS' 1818(e)(4)
or (g)(1), all prospective obligations of the Association under this
Agreement shall terminate as of the effective date of the order, but
vested rights and obligations of the Association and the Executive
shall not be affected.
(e) Notwithstanding anything herein contained to the contrary, if the
Association is in default (within the meaning of Section 3(x)(1) of
the FDI Act, 12 U.S.C. 'SS' 1813(x)(1), all prospective obligations
of the Association under this Agreement shall terminate as of the date
of default, but vested rights and obligations of the Association and
the Executive shall not be affected.
(f) Notwithstanding anything herein contained to the contrary, all
prospective obligations of the Association hereunder shall be
terminated, except to the extent that a continuation of this Agreement
is necessary for the continued operation of the Association: (i) by
the Director of the Office of Thrift Supervision ("OTS") or his or her
designee or the Federal Deposit Insurance Corporation ("FDIC"), at the
time the FDIC enters into an agreement to provide assistance to or on
behalf of the Association under the authority contained in Section
13(c) of the FDI Act, 12 U.S.C. 'SS' 1823(c); (ii) by the Director
of the OTS or his or her designee at the time such Director or
designee approves a supervisory merger to resolve problems related to
the operation of the Association or when the Association is determined
by such Director to be in an unsafe or unsound condition. The vested
rights and obligations of the parties shall not be affected.
If and to the extent that any of the foregoing provisions shall cease to be
required or by applicable
Page 26 of 28
law, rule or regulation, the same shall become inoperative as though eliminated
by formal amendment of this Agreement.
Section 28. No Offset or Recoupment; No Attachment.
The Association's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations under this Agreement shall
not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action which the Association or any of its affiliates or
subsidiaries may have against the Executive. In no event shall the Executive be
obligated to seek other employment or take any other action by way of mitigation
of the amounts payable to the Executive under any of the provisions of this
Agreement and such amounts shall not be reduced whether or not the Executive
obtains other employment. Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation, or
to execution, attachment, levy, or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to affect any such action shall
be null, void, and of no effect.
IN WITNESS WHEREOF, the Association has caused this Agreement to be
executed and the Executive has hereunto set his or her hand, all as of the day
and year first above written.
ATTEST: ASTORIA FEDERAL SAVINGS AND LOAN
ASSOCIATION
/s/ Alan P. Eggleston By: /s/ George L. Engelke, Jr.
- ----------------------------------- --------------------------------
Alan P. Eggleston Name: George L. Engelke, Jr.
Title: Chairman, President and Chief
Executive Officer
[Seal]
/s/ Gary T. McCann
------------------------------------
GARY T. MCCANN
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
On this 1st day of December, 2003, before me, the undersigned, personally
appeared Gary T. McCann, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed
to the within instrument and acknowledged to me
Page 27 of 28
that he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ Anna Knice
------------------------------------
Notary Public
Anna Knice
Notary Public, State of New York
NOP. 4980431
Qualified in Suffolk County
Commission Expires April 22, 2007
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
On this 1st day of December, 2003, before me, the undersigned, personally
appearedGeorge L. Engelke, Jr., personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
/s/ Anna Knice
------------------------------------
Notary Public
Anna Knice
Notary Public, State of New York
NOP. 4980431
Qualified in Suffolk County
Commission Expires April 22, 2007
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