Exhibit 10.1
ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION
AND
ASTORIA FINANCIAL CORPORATION
DIRECTORS' RETIREMENT PLAN
EFFECTIVE JANUARY 1, 1990, AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2005
1. Directors eligible to participate ("Eligible Directors") in this
Directors' Retirement Plan (the "Plan") shall only be those who retire
from the latter of the Board of Directors of Astoria Federal Savings and
Loan Association (the "Association") and Astoria Financial Corporation
(the "Company") and are not or were not full-time employees of the
Association or institutions merged with the Association prior to the
formation of the Company, or of companies merged with or acquired by the
Association or Company thereafter.
2. The mandatory retirement age for members of the Board of Directors of
the Association shall be as set forth in the Bylaws of the Association,
as amended from time to time, as in effect on January 1, 1990 or, if
later, the date on which the individual became an Eligible Director.
3. The mandatory retirement age for members of the Board of Directors of
the Company shall be as set forth in the Bylaws of the Company, as
amended from time to time, as in effect on January 1, 2004 or, if later,
the date on which the individual became an Eligible Director.
4. For purposes of determining benefits (the "Monthly Benefits") under
Paragraph 5 hereof the following definitions shall apply;
(a) Full Years of Service shall be the greater of years of service
for the Board of Directors of the Association or the Company.
Years of Service on the Board of Directors of an Acquired
Company shall be recognized as Years of Service with the
Association or the Company in the case of any Eligible Director
who (i) served on the Board of Directors of an Acquired Company
immediately prior to its acquisition by the Association or the
Company and (ii) became a member of the Board of Directors of
the Association or the Company immediately upon such
acquisition. In the event of a Change of Control (as defined
below), Years of Service shall be computed as if the Eligible
Director's service had continued through May 31st of the
calendar year in which the Eligible Director's current term
would expire.
(b) Monthly Fee for any Eligible Director as of any date shall mean
the aggregate of the following: (i) one-twelfth of the annual
retainer(s) rate in effect for service as a director of the
Boards of Directors of the Association and the Company, (ii)
one-twelfth of the annual retainer in effect for service as
chairman of a committee of the Boards of Directors of the
Association and the Company of which such Eligible Director is
chairman; and (iii) one-twelfth of the aggregate per-meeting
fees (if any) actually paid to such Eligible Director for
attendance at meetings of the Board of Directors of the
Association and the Company and any committees thereof during
the twelve consecutive calendar month period ending with the
month that includes the date in question.
(c) Acquired Company shall mean Fidelity New York, F.S.B., The
Greater New York Savings Bank, Long Island Bancorp, Inc, and
The Long Island Savings Bank, FSB.
5. The Monthly Benefit to which an Eligible Director shall be entitled
shall be based upon the following vesting schedule:
Full Years
of Monthly Benefit, calculated by multiplying
Service the percentage below by the Monthly Fee
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Less than 10 0%
10 50%
11 55%
12 60%
13 65%
14 70%
15 75%
16 80%
17 85%
18 90%
19 95%
20 or more 100%
In the case of an Eligible Director who has received or is eligible to
receive a benefit under another director retirement plan for service as
a director of an Acquired Company, the Monthly Benefit payable under
this Plan (when expressed as a single life annuity) shall be reduced by
the monthly benefit paid or payable under such other plan (when
expressed as a single life annuity payable at the same time as the
Monthly Benefit is payable under this Plan).
Except as provided below with respect to Monthly Benefits which become
payable following a Change of Control (as defined below), the Monthly
Benefit shall be paid as follows:
(a) Normal Retirement: Monthly Benefits shall be paid monthly
commencing on the first day of the month following retirement
upon reaching the later of the mandatory retirement ages set
forth in the Bylaws of the Company and the Association as in
effect on January 1, 2004 and January 1, 1990, respectively, or,
if later, the date on which the individual became an Eligible
Director.
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(b) Early Retirement: Monthly Benefits shall be paid monthly
commencing on the later of the first day of the month following
retirement or the first day of the month following attainment of
age 65. For purposes of the Plan and subject to Paragraph 11,
Early Retirement shall include all manner and means by which an
Eligible Director ceases to serve as a director of the Company
and the Association, excluding only normal retirement, removal
for cause or death.
6. The Plan is intended to be an unfunded plan and the Monthly Benefits
will be paid as due by the Association from its general assets.
7. In the event that an Eligible Director's service on the Boards of
Directors of the Company and the Association ceases as a result of such
Eligible Director's disability, the Monthly Benefit to which such
Eligible Director would otherwise have been entitled pursuant to the
Plan may, at the discretion of the Board of Directors of the
Association, be increased to an amount up to 100% of the Monthly Fee
received by the Eligible Director and the timing of such payment shall
be accelerated to the first day of the calendar month immediately
following cessation of service due to disability. Disability for this
purpose shall mean any medically determinable physical or mental
impairment which can be expected to result in death or to last for a
continuous period of at least twelve (12) months and as a result of
which either: (a) the Eligible Director is unable to engage in any
substantial gainful activity or (b) the Eligible Director has been
receiving income replacement benefits for a period of at least three (3)
months under an accident and health plan covering employees of the
Eligible Director's employer, as determined by the Board of Directors of
the Association in accordance with section 409A of the Internal Revenue
Code of 1986, as amended (the "Code") and the regulations thereunder.
8. All benefits payable to an Eligible Director pursuant to the Plan shall
terminate with the monthly payment made for the month that includes the
date of death of the Eligible Director, unless the Eligible Director
elects that benefits be paid in one of the following optional forms:
(a) a single lump sum payment
(b) fixed monthly installments for 120 months
(c) a joint and 100% survivor annuity
An election of an optional form of payment shall be in writing in the
form and manner determined by the Board of Directors of the Association
and must be made prior to the later of (i) commencement of participation
in the Plan and (ii) January 1, 2006. An Eligible Director who is also
entitled to a benefit under another plan for service as a director of
The Long Island Savings Bank, FSB or Long Island Bancorp, Inc. shall be
deemed to have elected fixed monthly installments for 120 months. An
Eligible Director who is also entitled to a benefit under another plan
for service as a director of The Greater New York Savings Bank shall be
deemed to have elected a joint and 100% survivor annuity form of payment
with his spouse as his contingent annuitant. The amount of any optional
form of payment shall be determined by, and on the basis of, reasonable
interest rate and mortality assumptions prescribed by an enrolled
actuary selected by the Board of Directors of the Association such that
the actuarial present value of the payments made under the optional form
of payment are equivalent to the actuarial present value of the payments
that would be made in the form of a single life annuity.
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Where an Eligible Director elects a form of payment with a guaranteed
minimum number of payments, the Eligible Director may designate a
beneficiary or beneficiaries for any payments remaining to be made at
the time of his death by filing a written notice with the Corporate
Secretary prior to the Eligible Director's death, in such form and
manner as the Corporate Secretary may prescribe. An Eligible Director
who has designated a beneficiary or beneficiaries may change or revoke
such designation prior to the Eligible Director's death by means of a
similar written instrument. Where an Eligible Director elects a joint
and survivor annuity form of payment, the Eligible Director may
designate a contingent annuitant by filing a written notice with the
Corporate Secretary prior to the Eligible Director's death, in such form
and manner as the Corporate Secretary may prescribe. An Eligible
Director who has designated a contingent annuitant may change or revoke
such designation prior to the commencement of payments or the Eligible
Director's death (whichever is earlier) by means of a similar written
instrument. If no beneficiary shall have been designated or if any such
designation shall be ineffective, or in the event that no designated
beneficiary survives the Eligible Director, payments due to a
beneficiary shall be paid in a single lump sum to the Eligible
Director's personal representative, or if no personal representative is
appointed within six (6) months after the Eligible Director's death or
such longer period as the Board of Directors of the Association deems
reasonable in its discretion, to his surviving spouse, or if he has no
surviving spouse, to his then living descendants, per stirpes. If any
Eligible Director and any one or more of his designated beneficiary(ies)
shall die in circumstances that leave substantial doubt as to who shall
have been the first to die, the Eligible Director shall be deemed to
have survived the deceased Beneficiary(ies). The presence of substantial
doubt for such purposes shall be determined by the Board of Directors of
the Association in its sole and absolute discretion. If the Eligible
Director's designated contingent annuitant does not survive him, then no
survivor benefit shall be paid under a joint and survivor annuity form
of payment.
9. (a) A Change of Control means, with respect to an Eligible
Director: (a) a change in ownership of the Eligible Director's
Service Recipient; (b) a change in effective control of the
Eligible Director's Service Recipient; or (c) a change in the
ownership of a substantial portion of the assets of the Eligible
Director's Service Recipient. Service Recipient means with
respect to an Eligible Director on any date: (i) the corporation
for which the Eligible Director is performing services on such
date; (ii) all corporations that are liable to the Eligible
Director for the benefits due to him under the Plan; (iii) a
corporation that is a majority shareholder of a corporation
described in section (i) or (ii) above; or (iv) any corporation
in a chain of corporations each of which is a majority
shareholder of another corporation in the chain, ending in a
corporation described in section (i) or (ii) above. The
existence of a Change of Control shall be determined by the
compensation committee of the Board of Directors of the Company
(the "Committee") in accordance with section 409A of the Code
and the regulations thereunder.
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(b) In the event of a Change of Control, the Association shall pay:
(i) To the Eligible Director, not later than thirty (30)
days following the Change of Control or upon the
Eligible Director's termination of service as a director
of the Company and the Association, whichever is later,
a lump sum payment equal to the present value of the
Monthly Benefits to which such Eligible Director is then
entitled under the Plan, where such present value is
determined using the mortality tables prescribed under
section 415(b)(2)(E)(v) of the Code and a discount rate,
compounded monthly, equal to the annualized rate of
interest prescribed by the Pension Benefit Guaranty
Corporation for the valuation of immediate annuities
payable under terminating single-employer defined
benefit plans (or, if no such rate is prescribed, the
rate prescribed under section 417(e)(3) of the Code) for
the month in which the Eligible Director's termination
of service as a director occurs; or
(ii) If elected by the Eligible Director in writing prior to
the date of commencement of participation in the Plan
or, if later, January 1, 2006, to a trust fund to be
established for the benefit of the Eligible Director at
the time of the Change of Control, with a trustee
selected by the Eligible Director, an amount actuarially
determined to be sufficient to pay to the Eligible
Director the Monthly Benefit provided pursuant to the
Plan as such benefit would be payable to the Eligible
Director under the terms of the Plan but for the Change
of Control.
To the extent of any payment under Paragraph 9(b)(i), the
Association shall have no further liability with respect to the
payment of benefits to the Eligible Director under the Plan. The
Association shall continue to be liable for the payment of
benefits under the Plan to the extent of any shortfall in the
funds held in trust for the payment of benefits pursuant to
Paragraph 9(b)(ii). To the extent that upon the conclusion of
the payment from the trust of all benefits due to an Eligible
Director under the Plan there is an excess in the funds held in
trust for the benefit of the Eligible Director, such excess
shall be returned to the Association.
(c) The Association shall pay all taxes, trustee's fees and other
administrative charges or expenses associated with the
establishment or continuance of such trust fund.
10. (a) Whenever appropriate in the Plan, words used in the singular
may be read in the plural, words in the plural may be read in
the singular, and words importing the masculine gender shall be
deemed equally to refer to the feminine or the neuter. Any
reference to a Paragraph shall be to a Paragraph of the Plan,
unless otherwise indicated.
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(b) The right to receive a benefit under the Plan shall not be
subject in any manner to anticipation, alienation or assignment,
nor shall rights be liable for or subject to debts, contracts
liabilities or torts. This Plan shall be binding upon the
Association and its successors and assigns, including any
successor by merger or consolidation or a statutory receiver or
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.
(c) The Association shall indemnify, hold harmless and defend its
Eligible Directors against their reasonable costs, including
legal fees, incurred by them or arising out of any action, suit
or proceeding in which they may be involved, as a result of
their efforts, in good faith, to defend or enforce terms of the
Plan.
(d) A determination that any provision of the Plan is invalid or
unenforceable shall not effect the validity or enforceability of
any other provision hereof.
(e) Failure to insist upon strict compliance with any terms,
covenants or conditions of the Plan shall not be deemed a waiver
of such term, covenant or condition. A waiver of any provision
of the Plan must be in writing, designated as a waiver, and
signed by the party against whom 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.
(f) The Plan shall be construed, administered and enforced according
to the laws of the State of New York without giving effect to
the conflict of laws principles thereof, except to the extent
that such laws are preempted by federal law. The federal and
state courts having jurisdiction in Nassau, Suffolk and New York
Counties, New York shall have exclusive jurisdiction over any
claim, action, complaint or lawsuit brought under the terms of
the Plan or in any way relating to the rights or obligations of
any person under, or the acts or omissions of the Board of
Directors of the Company and/or the Association or any duly
authorized person acting in their behalf in relation to, the
Plan. By accepting participation in this Plan, the Eligible
Director, for himself and any other person claiming any rights
under the Plan through him, agrees to submit himself, and any
such legal action described herein that he shall bring, to the
sole jurisdiction of such courts for the adjudication and
resolution of such disputes. The filing of any action, suit or
proceeding in any other jurisdiction shall result in a
forfeiture of all benefits due under the Plan to or in respect
of the person making such filing.
(g) The Association shall have the right to retain a sufficient
portion of any payment made under the Plan to cover the amount
required to be withheld pursuant to any applicable federal,
state and local tax law.
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(h) Nothing in this Plan shall be held or construed to establish any
deposit account for any Eligible Director or any deposit
liability on the part of the Association. An Eligible Directors'
rights hereunder shall be equivalent to those of a general
unsecured creditor.
(i) The Plan may be amended or terminated at any time by resolution
of the Board of Directors of the Company and the Board of
Directors of the Association. If the Plan is terminated, no
further benefits shall be earned, but benefits earned through
the termination date will continue to be paid at the times and
in the manner provided under the Plan.
(j) The Plan shall be administered by the Committee. The Committee
shall have the exclusive right to interpret the Plan and to
decide any matters arising in connection with the administration
and operation of the Plan and to take all other necessary and
proper actions to fulfill its duties as administrator. Any
action taken or omitted by the Committee with respect to the
Plan, including any decision, interpretation, claim denial or
review on appeal, shall be conclusive and binding on the
Company, the Association and Eligible Directors.
The Committee shall not be liable for any actions by it under
the Plan, unless due to its own negligence, willful misconduct
or lack of good faith. The Committee shall be indemnified and
held harmless by the Company and/or the Association from and
against all personal liability to which it may be subject by
reason of any act done or omitted to be done in its official
capacity as administrator in good faith in the administration of
the Plan, including all expenses reasonably incurred in its
defense in the event the Company and/or the Association fails to
provide such defense upon the request of the Committee. The
Committee is relieved of all responsibility in connection with
its duties hereunder to the fullest extent permitted by law,
short of breach of duty.
11. Notwithstanding anything herein contained to the contrary, any payments
or benefits provided to an Eligible Director pursuant to this Plan by
the Association are subject to and conditioned upon compliance with
Section 18K of the Federal Deposit Insurance Act, 12 U.S.C. Section
1825(k), and any regulations promulgated thereunder.
12. The Plan is intended to be a non-qualified deferred compensation plan
described in section 409A of the Code. The Plan shall be operated,
administered and construed to give effect to such intent. In addition,
the Plan shall be subject to amendment, with or without advance notice
to Eligible Directors and other interested parties, and on a prospective
or retroactive basis, including but not limited to amendment in a manner
that adversely affects the rights of Eligible Directors and other
interested parties, to the extent necessary to effect such compliance.
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Dated: December 21, 2005 ASTORIA FEDERAL SAVINGS AND
LOAN ASSOCIATION
By: George L. Engelke, Jr.
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George L. Engelke, Jr.
President and Chief Executive
Officer
Dated: December 21, 2005 ASTORIA FINANCIAL CORPORATION
By: George L. Engelke, Jr.
------------------------------
George L. Engelke, Jr.
President and Chief Executive
Officer
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