EXHIBIT NO. 10(XIII) - FORM OF EMPLOYMENT AGREEMENT, AS AMENDED,
BETWEEN MID AMERICA BANK FSB AND XXXXX XXXXXXX,
XXXXXXX XXXXXXX AND XXXXX XXXXXXXXX
The attached Employment Agreement dated April 19, 1990, as amended, between Mid
America Bank and Xxxxx Xxxxxxx is substantially identical in all
material respects (except as otherwise noted below) with the other contracts
listed below which are not being filed:
Parties to Employment Agreement
-------------------------------
Mid America Bank and Xxxxxxx Xxxxxxx (1)
Mid America Bank and Xxxxx X. Xxxxxxxxx (1)
/(1)/ Section 3(a) of the Employment Agreements provide for minimum annual
salaries of $227,000 and $115,000 for Messrs. X. Xxxxxxx and Xxxxxxxxx,
respectively. Section 6(b) of the Employment Agreements provide for
minimum monthly disability benefit amounts of $14,187.50 and $7,187.50
for Messrs. X. Xxxxxxx and Xxxxxxxxx, respectively.
MID AMERICA FEDERAL SAVINS BANK
EMPLOYMENT AGREEMENT
This AGREEMENT is made effective as of April 19, 1990 by and between Mid
America Federal Savings Bank (the "Bank"), a corporation organized under the
laws of the United States, with its principal administrative office at 55th &
Xxxxxx Streets, Clarendon Hills, Illinois, and Xxxxx X. Xxxxxxx ("Executive").
Any reference to "Holding Company" herein shall mean MAF Bancorp, Inc. or any
successor thereto.
WHEREAS, the Bank wishes to assure itself of the services of Executive for
the period provided in this Agreement; and
WHEREAS, Executive is willing to serve in the employ of the Bank on a full-
time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, Executive agrees to serve as
Chairman of the Board of Directors and Chief Executive Officer of the Bank.
During said period, Executive also agrees to serve, if elected, as an officer
and director of any subsidiary or affiliate of the Bank. Failure to reelect
Executive as Chief Executive Officer or failure to nominate Executive to the
Board of Directors or failure to elect the Executive as the Chairman of the
Board if elected as a director without the consent of the Executive shall
constitute a breach of this Agreement.
2. TERMS AND DUTIES.
(a) The period of Executive's employment under this Agreement shall be
deemed to have commenced as of the date first above written and shall continue
for a period of sixty (60) full calendar months thereafter. Commencing on the
third anniversary date of this Agreement, and continuing at each anniversary
date thereafter, the Agreement shall automatically renew for an additional year
such that the remaining term shall be three (3) years unless written notice is
provided to Executive at least ten (10) days and not more than twenty (20) days
prior to such anniversary date, that his employment shall cease at the end of
twenty-four (24) months following the next anniversary date.
(b) During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the Bank; provided, however, that with the approval
of the Board
of Directors of the Bank ("Board"), as evidenced by a resolution of such Board,
from time to time, Executive may serve, or continue to serve, on the boards of
directors of, and hold any other offices or positions in, companies or
organizations, which, in such Board's judgment, will not present any conflict of
interest with the Bank, or materially affect the performance of Executive's
duties pursuant to this Agreement.
3. COMPENSATION AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Section 2(b). The Bank
shall pay Executive as compensation a salary of not less than $239,000 per year
("Base Salary"). Such salary shall be payable semi-monthly. During the period of
this Agreement, Executive's salary shall be reviewed at least annually; the
first such review will be made no later than December 31, 1990. Such review
shall be conducted by a Committee designated by the Board, and such Committee
may increase said salary. In addition to the salary provided in this Section
3(a), the Bank shall provide Executive at no cost to Executive with all such
other benefits as are provided uniformly to permanent full-time employees of the
Bank.
(b) The Bank will provide Executive with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from immediately prior
to the beginning of the term of this Agreement, and the Bank will not, without
Executive's prior written consent, make any changes in such plans, arrangements
or perquisites which would adversely affect Executive's rights or benefits
thereunder. Without limiting the generality of the foregoing provisions of this
Subsection (b), Executive will be entitled to participate in or receive benefits
under any employee benefit plans including retirement plans, pension plans,
profit-sharing plans, deferred compensation plans, health-and-accident plan,
medical coverage or any other employee benefit plan or arrangement made
available by the Bank in the future to its senior executives and management
employees, subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and arrangements. Executive will be
entitled to incentive compensation and bonuses as provided in any plan of the
Bank in which Executive is eligible to participate. Nothing paid to the
Executive under any such plan or arrangement will be deemed to be in lieu of
other compensation to which the Executive is entitled under this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of
this Section 3, the Bank shall pay or reimburse Executive for all reasonable
travel and other reasonable expenses incurred by Executive performing his
obligations under this Agreement and may provide such additional compensation in
such form and such amounts as the Board may from time to time determine.
4. PAYMENTS TO EXECUTIVE UPON TERMINATION OF EMPLOYMENT.
The provisions of this Section shall in all respects be subject to the
terms and conditions stated in Sections 8 and 15.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following:(i) the
termination by the Bank or the Holding Company of Executive's full-time
employment hereunder for any reason other than a Change in Control, as defined
in Section 5(a) hereof or for Cause, as defined in Section 8 hereof; (ii)
Executive's resignation from the Bank's employ, upon any (A) failure to elect or
reelect Executive as the Chief Executive Officer or failure to nominate or
renominate Executive to the Board of Directors or failure to elect or reelect
Executive as Chairman of the Board if elected as a director, (B) material change
in Executive's functions, duties, or responsibilities, which change would cause
Executive's position to become one of lesser responsibility, importance, or
scope from the position and attributes thereof described in Section 1, above,
(and any such material change shall be deemed a continuing breach of this
Agreement), (C) liquidation, dissolution, consolidation, or merger of the Bank
or Holding Company in which the Bank or the Holding Company is not the resulting
entity, or transfer of all or substantially all of the assets of the Bank or
Holding Company in which the Bank or Holding Company is not the resulting
entity, or (D) breach of this Agreement by the Bank. Upon the occurrence of any
event described in clauses (A), (B), (C) or (D), above, Executive shall have the
right to elect to terminate his employment under this Agreement by resignation
upon not less than sixty (60) days prior written notice given within a
reasonable period of time not to exceed, except in case of a continuing breach,
four calendar months after the event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, the Bank shall pay
Executive, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or liquidated
damages, or both, a sum equal to the greater of three (3) times the average of
the three (3) preceding years' Base Salary paid to the Executive or the salary
payable to the Executive for the remaining term of this Agreement; provided,
--------
however, that if the Bank is not in compliance with its minimum capital
-------
requirements, such payments shall be deferred until such time as the Bank is in
capital compliance. At the discretion of the Executive, such payments shall be
made in a lump sum immediately upon the occurrence of an Event of Termination
subject to only the proviso above or paid monthly during thirty-six (36) months
following the Executive's termination.
(c) Upon the occurrence of an Event of Termination, the Bank will cause to
be continued life, health and disability coverage substantially identical to the
coverage maintained by the Bank for Executive prior to his termination. Such
coverage shall cease upon the earlier of Executive's employment by another
employer or thirty six (36) months.
(d) On an annual basis on January 2, or if January 2 is not a regular
business day, then on the next such regular business day, of each year,
Executive shall elect whether, in the event amounts are payable under Section
4(b) hereof, such amounts shall be paid in a lump sum or on a pro rata basis
pursuant to such section. Such election shall be irrevocable for the year for
which such election is made.
5. CHANGE IN CONTROL.
(a) No benefit shall be payable under this Section 5 unless there shall
have been a Change in Control of the Bank or Holding Company, as set forth
below. For purposes of this Agreement, a "Change in Control" of the Bank or
Holding Company shall mean an event of a nature that; (i) would be required to
be reported in response to Item 1 of the current report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); or (ii) results in a Change in
Control of the Bank or the Holding Company within the meaning of the Home
Owners' Loan Act of 1933, and the Rules and Regulations promulgated by the
Office of Thrift Supervision (or its predecessor agency), as in effect on the
date hereof, including Section 574 of such regulations; or (iii) without
limitation such a Change in Control shall be deemed to have occurred at such
time as (a) any "person" (as the term is used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities or makes an offer
to purchase securities of the Bank or the Holding Company representing 20% or
more of the Bank's or the Holding Company's outstanding securities ordinarily
having the right to vote at the election of directors except for any securities
of the Bank purchased by the Holding Company in connection with the conversion
of the Bank to the stock form and any securities purchased by the Bank's
employee stock ownership plan and trust; or (b) individuals who constitute the
Board of the Bank or Holding Company on the date hereof (the "Incumbent Board")
cease for any reason to constitute at least a majority thereof, provided that
any person becoming a director subsequent to the date hereof whose election was
approved by a vote of at least three-quarters of the directors comprising the
Incumbent Board, or whose nomination for election by the stockholders was
approved by the same Nominating Committee serving under an Incumbent Board,
shall be, for purposes of this clause (b), considered as though he were a member
of the Incumbent Board; or (c) a merger, consolidation or sale of all or
substantially all the assets of the Bank or the Holding Company occurs; or (d) a
proxy statement shall be distributed soliciting proxies from stockholders of the
Holding Company, by someone other than the current management of the Holding
Company, seeking stockholder approval of a plan of reorganization, merger or
consolidation of the Holding Company or Bank with one or more corporations as a
result of which the outstanding shares of the class of securities then subject
to the Plan are exchanged for or converted into cash or property or securities
not issued by the Bank or Holding Company; or (e) a tender offer is made for 20%
or more of the outstanding securities of the Bank or Holding Company.
(b) If any of the events described in Section 5(a) hereof constituting a
Change in Control have occurred or the Board of the Bank or the Holding Company
has determined that a Change in Control has occurred, Executive shall be
entitled to the benefits provided in paragraphs (c), (d), (e), (f) and (g) of
this Section 5 upon his subsequent termination of employment at any time during
the term of this Agreement (regardless of whether such termination results from
his resignation or his dismissal), unless such termination is because of his
death, disability or for cause. Upon the Change in Control, Executive shall have
the right to elect to terminate his employment with the Bank at any time during
the term of this Agreement.
(c) Upon the occurrence of a Change in Control followed by the Executive's
termination of employment, the Bank shall pay Executive, or in the event of his
subsequent
death, his beneficiary or beneficiaries, or his estate, as the case may be, as
severance pay or liquidated damages, or both, a sum equal to three (3) times the
average of the three (3) preceding years' Base Salary paid to the Executive. At
the discretion of the Executive, such payment may be made in a lump sum
immediately upon a Change in Control and termination of employment of Executive
or paid monthly during the thirty-six (36) months following the Executive's
termination.
(d) Upon the occurrence of a Change in Control followed by the Executive's
termination of employment, the Bank will cause to be continued life, health and
disability coverage substantially identical to the coverage maintained by the
Bank for Executive prior to his severance. Such coverage shall cease upon
the earlier of Executive's employment by another employer or upon the expiration
of thirty-six (36) months.
(e) Upon the occurrence of a Change in Control, the Executive will have
such rights as specified in the Holding Company's Incentive Stock Option Plan or
any other employee benefit plan with respect to options and such other rights as
may have been granted to Executive under such plans.
(f) Upon the occurrence of a Change in Control, the Executive will be
entitled to the benefits under the Bank's Management Recognition and Retention
Plans.
(g) Notwithstanding the preceding paragraphs of this Section 5, in the
event that:
(i) the aggregate payments or benefits to be made or
afforded to Executive under said paragraphs (the
"Termination Benefits") would be deemed to include
an "excess parachute payment" under 280G of the Code
or any successor thereto, and
(ii) if such Termination Benefits were reduced to an amount
(the "Non-Triggering Amount"), the value of which is
one dollar ($1.00) less than an amount equal to three
(3) times Executive's "base amount", as determined in
accordance with said Section 280G, and the
Non-Triggering Amount would be greater than the
aggregate value of the Termination Benefits (without
such reduction) minus the amount of tax required to be
paid by Executive thereon by Section 4999 of the Code,
then the Termination Benefits shall be reduced to the
Non-Triggering Amount. The allocation of the reduction
required hereby among the Termination Benefits provided
by the preceding paragraphs of this Section 5 shall be
determined by the Executive. In the event that
Executive receives the Non-Triggering Amount pursuant
to this paragraph (g) and it is subsequently
determined by the Internal Revenue Service or judicial
authority that Executive is deemed to have received an
amount in excess of the Non-Triggering Amount, the Bank
shall pay to Executive an amount equal to the value of the
payments or benefits in excess of the Non-Triggering Amount
he is so deemed to have received.
(h) On an annual basis on January 2, or if January 2 is not a regular
business day, then on the next such regular business day, of each year,
Executive shall elect whether, in the event amounts are payable under Section
5(c) hereof, such amounts shall be paid in a lump sum or on a pro rata basis
pursuant to such section. Such election shall be irrevocable for the year for
which such election is made.
6. TERMINATION FOR DISABILITY.
(a) If, as a result of Executive's incapacity due to physical or mental
illness, he shall have been absent from his duties with the Bank on a full-time
basis for six (6) consecutive months, and within thirty (30) days after written
notice of potential termination is given he shall not have returned to the full-
time performance of his duties, the Bank or the Holding Company may terminate
Executive's employment for "Disability."
(b) The Bank will pay Executive, as disability pay, a monthly payment
equal to the greater amount of three-quarters (3/4) of Executive's monthly rate
of Base Salary on the effective date of such termination or $14,937.50. These
disability payments shall commence on the effective date of Executive's
termination and will end on the earlier of (i) the date Executive returns to the
full-time employment of the Bank in the same capacity as he was employed prior
to his termination for Disability and pursuant to any employment agreement
between Executive and the Bank; (ii) Executive's full-time employment by another
employer; (iii) Executive attaining the normal age of retirement; or (iv)
Executive's death. Notwithstanding any other provision to the contrary, the Bank
may apply any proceeds from disability income insurance for Executive which was
paid for by the Bank as partial satisfaction of its obligation under this
Section. The disability payments will be in addition to any benefit payable from
any qualified or non-qualified retirement plans, stock benefit plans or other
programs maintained by the Bank.
(c) The Bank will cause to be continued life, health and disability
coverage substantially identical to the coverage maintained by the Bank for
Executive prior to his termination for Disability. This coverage shall cease
upon the earlier of (i) the date Executive returns to the full-time employment
of the Bank, in the same capacity as he was employed prior to his termination
for Disability and pursuant to an employment agreement between Executive and the
Bank; (ii) Executive's full-time employment by another employer; (iii)
Executive's attaining the normal age of retirement, or (iv) the Executive's
death.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period during which
Executive is incapable of performing his duties hereunder by reason of temporary
disability.
7. TERMINATION UPON RETIREMENT.
Termination by the Bank of the Executive based on "Retirement" shall
mean termination in accordance with the Bank's retirement policy or in
accordance with any retirement arrangement established with Executive's consent
with respect to him. Upon termination of Executive upon Retirement, Executive
shall be entitled to all benefits under any retirement plan of the Bank and
other plans to which Executive is a party. In addition, the Bank will cause to
be continued health coverage substantially identical to the coverage maintained
by the Bank for Executive prior to his Retirement until his death.
8. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination because of the
Executive's personal dishonesty, incompetence, willful misconduct, any breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule, or regulation (other than traffic
violations or similar offenses) or final cease-and- desist order, or material
breach of any provision of this Agreement. In determining incompetence, the acts
or omissions shall be measured against standards generally prevailing in the
savings institutions industry. Notwithstanding the foregoing, Executive shall
not be deemed to have been Terminated for Cause unless and until there shall
have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the members of the Board at a
meeting of the Board called and held for that purpose (after reasonable notice
to Executive and an opportunity for him, together with counsel, to be heard
before the Board), finding that in the good faith opinion of the Board,
Executive was guilty of conduct justifying Termination for Cause and specifying
the particulars thereof in detail. The Executive shall not have the right to
receive compensation or other benefits for any period after Termination for
Cause. Any stock options granted to Executive under any stock option plan of
the Bank, the Holding Company or any subsidiary or affiliate thereof, shall
become null and void effective upon Executive's receipt of Notice of Termination
for Cause pursuant to Section 9 hereof, and shall not be exercisable by
Executive at any time subsequent to such Termination for Cause.
9. NOTICE.
Any purported termination by the Holding Company or by Executive shall be
communicated by Notice of Termination to the other party hereto.
For purposes of this Agreement, a "Notice of Termination" shall mean a
written notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provision so indicated. "Date of Termination" shall mean (A) if Executive's
employment is terminated for Disability, thirty (30) days after a Notice of
Termination is given (provided that he shall not have returned to the
performance of his duties on
a full-time basis during such thirty (30) day period), and (B) if his employment
is terminated for any other reason, the date specified in the Notice of
Termination (which, in the case of a Termination for Cause, shall not be less
than thirty (30) days from the date such Notice of Termination is given);
provided that if, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, the Date of Termination shall
be the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected) and
provided further that the Date of Termination shall be extended by a notice of
dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Bank will continue to pay
Executive his full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, Base Salary) and continue him
as a participant in all compensation, benefit and insurance plans in which he
was participating when the notice of dispute was given, until the dispute is
finally resolved in accordance with this Agreement. Amounts paid under this
Section are in addition to all other amounts due under this Agreement and shall
not be offset against or reduce any other amounts due under this Agreement.
10. POST-TERMINATION OBLIGATIONS.
(a) All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with paragraph (b) of this Section 10 during
the term of this Agreement and for one (1) full year after the expiration or
termination hereof.
(b) Executive shall, upon reasonable notice, furnish such information and
assistance to the Bank as may reasonably be required by the Bank in connection
with any litigation in which it or any of its subsidiaries or affiliates is, or
may become, a party.
11. NON-DISCLOSURE.
Executive recognizes and acknowledges that the knowledge of the business
activities and plans for business activities of the Bank and affiliates thereof,
as it may exist from time to time, is a valuable, special and unique asset of
the business of the Bank. Executive will not, during or after the term of his
employment, disclose any knowledge of the past, present, planned or considered
business activities of the Bank or affiliates thereof to any person, firm,
corporation, or other entity for any reason or purpose whatsoever.
Notwithstanding the foregoing, Executive may disclose any knowledge of banking,
financial and/or economic principles, concepts or ideas which are not solely and
exclusively derived from the business plans and activities of the Bank. In the
event of a breach or threatened breach by the Executive of the provisions of
this Section, the Bank will be entitled to an injunction restraining Executive
from disclosing, in whole or in part, the knowledge of the past, present,
planned or considered business activities of the Bank or affiliates thereof, or
from rendering any services to any person, firm, corporation, other entity to
whom such knowledge, in whole or in part, has been disclosed or is threatened to
be disclosed. Nothing herein will be construed as prohibiting the Bank from
pursuing other
remedies available to the Bank for such breach or threatened breach, including
the recovery of damages from Executive.
12. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be paid in cash or check from
the general funds of the Bank. The Holding Company, however, guarantees payment
and provision of all amounts and benefits due hereunder to Executive, if such
amounts due from the Bank are not timely paid or provided by the Bank, such
amounts and benefits shall be paid or provided by the Holding Company.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank and Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring of Executive of
a kind elsewhere provided. No provision of this Agreement shall be interpreted
to mean that Executive is subject to receiving fewer benefits than those
available to him without reference to this Agreement.
14. NO ATTACHMENT.
(a) 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.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Bank and their respective successors and assigns.
15. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver for
such term or condition for the future of as to any act other than that
specifically waived.
16. REQUIRED PROVISIONS.
(a) The Bank may terminate the Employee's employment at any time, but any
termination by the Bank, other than Termination for Cause, shall not prejudice
Employee's right to compensation or other benefits under this Agreement.
Employee shall not have the right to receive compensation or other benefits for
any period after Termination for Cause as defined in Section 8 hereinabove.
(b) If the Employee is suspended from office and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) (12 USC 1818(e)(3)) or 8(g) (12 USC 1818(g)) of the Federal
Deposit Insurance Act, as amended by the Financial Institutions Reform, Recovery
and Enforcement Act of 1989, the Bank's obligations under this contract shall be
suspended as of the date of service, unless stayed by appropriate proceedings.
If the charges in the notice are dismissed, the Bank may in its discretion (I)
pay the Employee all or part of the compensation withheld while their contract
obligations were suspended and (ii) reinstate (in whole or in part) any of the
obligations which were suspended.
(c) If the Employee is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e) (12 USC 1818(e)) or 8(g) (12 USC 1818(g)) of the Federal Deposit
Insurance Act, as amended by the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, all obligations of the Bank under this contract shall
terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
(d) If the Bank is in default as defined in Section 3(x) (12 USC
1813(x)(1)) of the Federal Deposit Insurance Act, as amended by the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, all obligations of
the Bank under this contract shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the contracting parties.
(e) All obligations of the Bank under this contract shall be terminated,
except to the extent determined that continuation of the contract is necessary
for the continued operation of the institution, (I) by the Federal Deposit
Insurance Corporation, at the time FDIC enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in Section
13(c) (12 USC 1823(c)) of the Federal Deposit Insurance Act, as amended by the
Financial Institutions Reform, Recovery and Enforcement Act of 1989; or (ii) by
the Office of Thrift Supervision ("OTS") at the time the OTS or its District
Director approves a supervisory merger to resolve problems related to the
operations of the Bank or when the Bank is determined by the OTS or FDIC to be
in an unsafe or unsound condition. Any rights of the parties that have already
vested, however, shall not be affected by such action.
17. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such
provision not held so invalid, and each such other provision and part thereof
shall to the full extent consistent with law continue in full force and effect.
18. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
19. GOVERNING LAW.
This Agreement and its validity, interpretation, performance and
enforcement shall be governed by the Federal law.
20. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in accordance with the
rules of the American Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having jurisdiction; provided,
however, that Executive shall be entitled to seek specific performance of his
right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
21. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Bank, which payments are guaranteed by the Holding Company
pursuant to Section 12 hereof.
22. INDEMNIFICATION.
The Bank shall provide Executive (including his heirs, executors and
administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense, or in lieu thereof, shall indemnify
Executive (and his heirs, executors and administrators) to the fullest extent
permitted under Federal law against all expenses and liabilities reasonably
incurred by him in connection with or arising out of any action, suit or
proceeding in which he may be involved by reason of his having been a director
or officer of the Bank (whether or not he continues to be a director or officer
at the time of incurring such expenses or liabilities), such expenses and
liabilities to include, but not be limited to, judgments, court costs and
attorneys' fees and the cost of reasonable settlements, such settlements to be
approved by the Board of Directors of the Bank, if such action is brought
against Executive in his capacity as a officer or director of the Bank.
However, such indemnification shall not extend to matters as to which Executive
is finally adjudged to be liable for willful misconduct in the performance of
his duties.
SIGNATURES.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed and
its seal to be affixed hereunto by its duly authorized officer, and Executive
has signed this Agreement, on the 19th day of April, 1990.
ATTEST: MID AMERICA FEDERAL SAVINGS BANK
/s/ Xxxxxxx Xxxxxx BY: /s/ Xxxxxxx Xxxxxxx
------------------ -----------------------
Secretary President
(SEAL)
WITNESS:
/s/ Xxxx Xxxxx /s/ Xxxxx Xxxxxxx
-------------- -----------------
Executive
AMENDMENT TO EMPLOYMENT AGREEMENT
---------------------------------
OF XXXXX XXXXXXX
----------------
The undersigned, in consideration of their mutual promises and other good and
valuable consideration, hereby agree to amend the Employment Agreement of Xxxxx
Xxxxxxx dated April 19, 1990 (the "Agreement") by adding the following two new
sentences to the end of Section 5(a) of the Agreement:
However, notwithstanding anything contained in this section to the contrary, a
Change in Control shall not be deemed to have occurred as a result of an event
described in (i), (ii) or (iii) (a), (c) or (e) above which resulted from an
acquisition or proposed acquisition of stock of the Holding Company by a person,
as defined in the OTS' Acquisition of Control Regulations (12 C.F.R. Section
574)(the "Control Regulations"), who was an executive officer of the Holding
Company on January 19, 1990 and who has continued to serve as an executive
officer of the Holding Company as of the date of the event described in (i),
(ii) or (iii)(a), (c) or (e) above (an "incumbent officer"). In the event a
group of individuals acting in concert satisfies the definition of "person"
under the Control Regulations, the requirements of the preceding sentence shall
be satisfied, and thus a change in control shall not be deemed to have occurred,
if at least one individual in the group is an incumbent officer.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment effective
this August 28, 1990.
ATTEST: MID AMERICA FEDERAL SAVINGS BANK
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
------------------ -------------------
Corporate Secretary President
EMPLOYEE
By: /s/ Xxxxx Xxxxxxx
-----------------
Amendment to Employment Agreement
of Xxxxx Xxxxxxx
The undersigned, in consideration of their mutual promises and other good and
valuable consideration, hereby agree to amend the Employment Agreement of Xxxxx
Xxxxxxx dated April 19, 1990, as amended, (the "Agreement"), by adding a new
sentence after the first sentence of Section 1 of the Agreement as shown below,
and by revising Section 2(a) to read as shown below, both such amendments to be
effective as of the date shown below.
(Add after first sentence of Section 1)
The Executive shall render administrative and management services to the Bank
such as are customarily performed by persons in a similar executive capacity.
(Revised Section 2(a))
2. TERMS AND DUTIES
----------------
(a) The period of Executive's employment under this Agreement shall be deemed
to have commenced as of the date first above written and shall continue for a
period of sixty (60) full calendar months thereafter. Commencing on the third
anniversary date of this Agreement, and continuing at each anniversary date
thereafter, the board of directors of the Bank ("Board") may extend the
Agreement an additional year. The Board will review the Agreement and the
Executive's performance annually for purposes of determining whether to extend
the Agreement, and the results thereof shall be included in the minutes of the
Board's meeting. In the event the Executive chooses not to renew the Agreement
for an additional period, the Executive shall provide the Bank with written
notice at least ten (10) days and not more than twenty (20) days prior to such
anniversary date. If either the Bank or the Executive chooses not to renew the
Agreement, the Executive's employment shall terminate at the end of the
remaining term of the Agreement.
In WITNESS WHEREOF, the parties hereto have executed this Amendment effective
this August 10, 1992.
ATTEST: MID AMERICA FEDERAL SAVINGS BANK
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
------------------ -------------------
Corporate Secretary President
EMPLOYEE
By: /s/ Xxxxx Xxxxxxx
-----------------
Amendment to Employment Agreement
of Xxxxx Xxxxxxx
The undersigned, in consideration of their mutual promises and other good and
valuable consideration, hereby agree to amend the Employment Agreement of Xxxxx
Xxxxxxx dated April 19, 1990, as amended, (the "Agreement"), as shown below.
Such amendments shall be effective as of the date shown below.
1. Section 5(a)(iii)(a) shall be revised to read as follows:
(a) any "person" (as the term is used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-
3 under the Exchange Act), directly or indirectly, of securities or makes
an offer to purchase and completes the purchase of securities of the Bank
or the Holding Company representing 20% or more of the Bank's or the
Holding Company's outstanding securities ordinarily having the right to
vote at the election of directors except for any securities of the Bank
purchased by the Holding Company in connection with the conversion of the
Bank to the stock form and any securities purchased by the Bank's employee
stock ownership plan and trust;
2. Section 5(a)(iii)(e) shall be revised to read as follows:
(e) a tender offer is made and completed for 20% or more of the outstanding
securities of the Bank or Holding Company.
3. Section 5(a)(iii)(d) shall be revised to read as follows:
(d) a proxy statement shall be distributed soliciting proxies from
stockholders of the Holding Company, by someone other than the current
management of the Holding Company, seeking stockholder approval of a plan
of reorganization, merger or consolidation of the Holding Company or Bank
with one or more corporations as a result of which the outstanding shares
of the class of securities then subject to the Plan are exchanged for or
converted into cash or property or securities not issued by the Bank or the
Holding Company, and such proxy statement proposal is approved by the
shareholders of the Holding Company.
4. Section 6, "Termination for Disability", shall be amended by adding the
following new paragraph 6(e):
(e) For purposes of this section and this Agreement, "disability" shall be
defined by reference to its definition contained in the Mid America Federal
Savings Bank Employees Profit Sharing Plan.
5. Section 21, "Payment of Legal Fees" shall be amended to read as follows:
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be
paid or reimbursed by the Bank, if the Executive is successful on the
merits of such dispute or question pursuant to any legal judgment,
arbitration or settlement. Such payments are guaranteed by the Holding
Company pursuant to Section 12 hereof.
6. Section 4(d) shall be amended by adding the following sentence at the end
of this paragraph:
"Notwithstanding the previous sentence, however, the Bank may, in its sole
discretion, require such payments to be made in a lump sum."
IN WITNESS WHEREOF, the parties hereto have executed this Amendment effective
this December 21, 1993.
ATTEST: MID AMERICA FEDERAL SAVINGS BANK
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
------------------ -------------------
Corporate Secretary President
EMPLOYEE
By: /s/ Xxxxx Xxxxxxx
-----------------
Amendment to Employment Agreement
of Xxxxx Xxxxxxx
The undersigned, in consideration of their mutual promises and other good and
valuable consideration, hereby agree to amend the Employment Agreement of Xxxxx
Xxxxxxx dated April 19, 1990, as amended, (the "Agreement"), as shown below.
Such amendments shall be effective as of the date shown below.
1. Section 4(b) shall be revised to read as follows:
Upon the occurrence of an Event of Termination, the Bank shall pay
Executive, or in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or
liquidated damages, or both, a sum equal to the greater of (A) three (3)
times the average of the three preceding years compensation paid to the
Executive or (B) the compensation payable to the Executive for the
remaining term of this Agreement; provided, however, that if the Bank is
-------- -------
not in compliance with its minimum capital requirements, such payments
shall be deferred until such time as the Bank is in capital compliance. For
purposes of the preceding sentence, compensation shall include only Base
Salary plus payments made under the MAF Bancorp Executive Annual Incentive
Plan (or such other annual cash incentive plan in effect with respect to
years ending prior to July 1, 1993). At the discretion of the Executive,
such payments shall be made in a lump sum immediately upon the occurrence
of an Event of Termination, subject to only the proviso above or paid
monthly during the thirty-six (36) months following the Executive's
termination.
2. Section 5(c) shall be revised to read as follows:
Upon the occurrence of a Change in Control followed by the Executive's
termination of employment, the Bank shall pay Executive, or in the event of
his subsequent death, his beneficiary or beneficiaries, or his estate, as
the case may be, as severance pay or liquidated damages, or both, a sum
equal to three (3) times the average of the three preceding years
compensation paid to the Executive. For purposes of the preceding sentence,
compensation shall include only Base Salary plus payments made under the
MAF Bancorp Executive Annual Incentive Plan (or such other annual cash
incentive plan in effect with the respect to years ending prior to July 1,
1993). At the discretion of the Executive, such payment may be made in a
lump sum immediately upon a Change in Control and termination of employment
of Executive or paid monthly during the thirty-six (36) months following
the Executive's termination.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment effective
this December 20, 1995.
ATTEST: MID AMERICA FEDERAL SAVINGS BANK
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
------------------ -------------------
Corporate Secretary President
EMPLOYEE
By: /s/ Xxxxx Xxxxxxx
-----------------
Amendment to Employment Agreement of Xxxxx Xxxxxxx
The undersigned, in consideration of their mutual promises and other good and
valuable consideration, hereby agree to amend the Employment Agreement of Xxxxx
Xxxxxxx dated April 19, 1990, as amended, (the "Agreement"), as shown below.
Such amendment shall be effective as of the date shown below.
Section 5(g) shall be revised to read as follows:
Notwithstanding the preceding paragraphs of this Section 5, in the event it
shall be determined that any payment or distribution of any type to or for the
benefit of the Executive by the Bank, any of its affiliates, or any person who
acquires ownership or effective control of the Bank or Holding Company or
ownership of a substantial portion of the Bank's or Holding Company's assets
(within the meaning of Section 280G of the Code, and the regulations thereunder)
or any affiliate of such person, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise (the "Total
Payments"), is subject to the excise tax imposed by Section 4999 of the Code or
any similar successor provision or any interest or penalties with respect to
such excise tax (such excise tax, together with any such interest and penalties,
are collectively referred to as the "Excise Tax"), then, except in the case of a
Deminimus Excess Amount (as described below), the Executive shall be entitled to
receive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by the Executive of all taxes imposed upon the Gross-Up Payment
(including any federal, state and local income, payroll or excise taxes and any
interest or penalties imposed with respect to such taxes), the Executive retains
an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total
Payments (not including any Gross-Up Payment).
In the event that the amount by which the present value of the Total Payments
which constitute "parachute payments" (within the meaning of Section 280G of the
Code)(the "Parachute Payments") exceeds three (3) times the Executive's "base
amount" (within the meaning of Section 280G of the Code)(the "Base Amount") is
less than 3% of the amount determined under Section 5(c) of this Agreement, such
excess shall be deemed to be a Deminimus Excess Amount and the Executive shall
not be entitled to a Gross-Up Payment. In such an instance, the Parachute
Payments shall be reduced to an amount (the "Non-Triggering Amount"), the value
of which is one dollar ($1.00) less than an amount equal to three (3) times
Executive's Base Amount; provided that such reduction shall not be made unless
the Non-Triggering Amount would be greater than the aggregate value of the
Parachute Payments (without such reduction) minus the amount of Excise Tax
required to be paid by Executive thereon. The reduction required hereby shall
be made by reducing the amount payable under Section 5(c) of this Agreement.
1
All determinations as to the portion, if any, of the Total Payments which
constitute Parachute Payments, whether a Gross-Up Payment is required, the
amount of such Gross-Up Payment, the amount of any reduction, and any amounts
relevant to the foregoing paragraphs of this Section 5(g) shall be made by an
independent accounting firm selected by the Bank, which may be the accounting
firm then regularly retained by the Bank (the "Accounting Firm"). The Accounting
Firm shall provide its determination (the "Determination"), together with
detailed supporting calculations, regarding the amount of any Gross-Up Payment
and any other relevant matter, both to the Bank and the Executive, within five
(5) days of a date of termination, if applicable, or such earlier time as is
requested by the Bank or the Executive (if the Executive reasonably believes
that any of the Total Payments may be subject to the Excise Tax). Any
determination by the Accounting Firm shall be binding upon the Bank and the
Executive. As a result of uncertainty in the application of Sections 280G and
4999 of the Code at the time of the initial determination by the Accounting Firm
hereunder, or as a result of a subsequent determination by the Internal Revenue
Service or a judicial authority, it is possible that the Bank should have made
Gross-Up Payments ("Underpayment"), or that Gross-Up Payments will have been
made by the Bank which should not have been made ("Overpayments"). In either
such event, the Accounting Firm shall determine the amount of the Underpayment
or Overpayment that has occurred. In the case of the Underpayment, the amount of
such Underpayment shall be promptly paid by the Bank to or for the benefit of
the Executive. In the case of an Overpayment, the Executive shall, at the
direction and expense of the Bank, take such steps as are reasonably necessary
(including the filing of returns and claims for refund), follow reasonable
instructions from, and procedures established by, the Bank, and otherwise
reasonably cooperate with the Bank to correct such Overpayment, including
repayment of such Overpayment to the Bank.
Effect of Certain Accounting Rules. The Executive acknowledges that it is in
the Bank and Holding Company's best interests to remain eligible to account for
any business combination into which they may become a party under the "pooling-
of-interests" method of accounting. The Bank does not believe that any provision
of the foregoing Amendment to Employment Agreement will affect the Bank or
Holding Company's ability to so account for any business combination. Due to the
uncertainties associated with the accounting rules governing the pooling-of-
interests method, however, it is possible that the provisions of this Amendment
may impact the Bank or Holding Company's ability to use pooling-of-interests
accounting for business combinations. Accordingly, in the event the Board of
Directors determines it to be in the best interests of the Bank or Holding
Company to account for a business combination under the pooling-of-interests
method and, in the written opinion of the Accounting Firm referred to above, if
any provision of this Amendment makes a business combination to which the Bank
or Holding Company is a party ineligible for pooling-of interests accounting
under the provisions of APB Opinion No. 16, as modified or amended, that but for
such provision of this Amendment to Employment Agreement would otherwise be
eligible for such accounting treatment, then the Bank and Executive agree that
the terms of this Amendment shall be rescinded to the extent necessary to enable
the business combination to so qualify for such accounting treatment.
2
IN WITNESS WHEREOF, the parties have executed this Amendment effective this
October 26, 1999.
ATTEST: MID AMERICA BANK, FSB
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
--------------------- ----------------------
Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxx
Corporate Secretary President
EMPLOYEE
BY /s/ Xxxxx Xxxxxxx
----------------------
Xxxxx Xxxxxxx
