EXHIBIT 10.9
MAF BANCORP, INC.
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
This Stock Option Agreement (this "Agreement") is made as of the date set
forth on the signature page hereof by and between MAF Bancorp, Inc., a Delaware
corporation (the "Company"), and the undersigned Optionee ("Optionee"). Except
as otherwise indicated or defined in paragraph 1 hereof, all words with initial
capitals shall have the same meaning as ascribed to them in the Plan. Optionee
acknowledges receipt of a copy of the Plan.
WHEREAS, the Company desires to grant to Optionee a non-qualified stock
option ("Option") to buy shares of the Company's Common Stock, pursuant to the
MAF Bancorp, Inc. Incentive Compensation Plan (the "Plan") and this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. For the purposes of this Agreement:
(a) "Affiliate" means the Company and any other direct or indirect
subsidiary of the Company.
(b) "Change in Control" shall mean any of the following events:
(i) a change in control which 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) a change in control of the Company or the Bank within the
meaning of the Home Owners Loan Act of 1933, as amended, 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, at such time as 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 Company representing
20% or more of the Bank's or Company's outstanding securities ordinarily
having the right to vote at the election of directors except for (i) any
securities purchased by the employee stock ownership plan and trust of the
Company or a subsidiary or (ii) any securities of the Bank owned by the
Company; or
(iv) individuals who constitute either the Company's Board of
Directors on the date hereof (the "Incumbent Board"), or the Board of
Directors of Mid America Bank ("Bank") on the date hereof (the "Bank
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 the Bank
Incumbent Board, as the case may be, or whose nomination for election by
the stockholders was approved by the Nominating Committee serving under the
Incumbent Board or the Bank Incumbent Board, shall be, for purposes of this
clause (iv), considered as though such individual was a member of the
Incumbent Board or the Bank Incumbent Board, as the case may be; or
(v) a plan of reorganization, merger, consolidation, sale of
all or substantially all the assets of the Bank or Company or similar
transaction occurs; or
(vi) a proxy statement shall be distributed soliciting proxies
from stockholders of the Company, by someone other than the current
management of the Company, seeking stockholder approval of a plan of
reorganization, merger or consolidation of the Company or Bank or similar
transaction with one or more corporations as a result of which the
outstanding shares of the class of securities then subject to such plan or
transaction are exchanged for or converted into cash or property or
securities not issued by the Company and such proxy statement proposal is
approved by the shareholders of the Company; or
(vii) a tender offer is made and completed for 20% or more of
the outstanding securities of the Company.
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), (iii), (v) or (vii) above which resulted
from an acquisition or proposed acquisition of stock of the Company by a person,
as defined in the OTS' Acquisition of Control Regulations (12 C.F.R. ss. 574)
(the "Control Regulations"), who was an executive officer of the Company on the
date of the adoption of the Plan and who has continued to serve as an executive
officer of the Company as of the date of the event described in (i), (ii),
(iii), (v) or (vii) 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.
(c) "Resignation" means Optionee's relinquishment of service as an
employee or director with the Company and all Affiliates.
(d) "Retirement" means any Resignation or Termination of employment
with the Company and all Affiliates, other than due to death or Termination for
Cause, (i) on or after the Optionee's normal retirement date or early retirement
date as from time to time set forth under any tax-qualified plan of the Company
or any Affiliate which covers the Optionee. In the case of a director who is not
an employee, "Retirement" means retirement as a director of the Company and all
Affiliates.
(e) "Termination" means a termination of the employment of Optionee by
the Company and all of its Affiliates for any reason, other than Resignation or
a Termination For Cause, including, but not limited to, permanent disability (as
determined by the Committee in accordance with the Code after receipt of medical
advice) or death.
(f) "Termination Date" means the date on which a Resignation,
Termination or Termination For Cause occurs.
(g) "Termination For Cause" means a termination of the employment of
Optionee by the Company or any Affiliate due to:
(i) The commission of an unlawful or criminal act by Optionee
resulting in material injury to the business or property of the Company or
Affiliates or of an act generally considered to involve moral turpitude,
all as reasonably determined by the Committee;
(ii) The commission of an intentional act by Optionee in the
performance of Optionee's duties as an employee or director of the Company
or any Affiliate amounting to gross negligence or misconduct or resulting
in material injury to the business or property of the Company or
Affiliates, all as reasonably determined by the Committee;
(iii) Gross misconduct in, or the continued and willful refusal
by the Optionee after written notice by the Company to make himself
available for, the performance of the Optionee's duties for the Company or
a subsidiary; or
-2-
(iv) Suspension due to the direction of any authorized bank
regulatory agency that the Optionee be relieved of his or her duties and
responsibilities to the Company or a subsidiary.
2. Grant and Designation of Option. Upon the execution and delivery of this
Agreement and the related Stock Option Certificate, in each case as of the date
set forth on the signature page, and subject to the Plan (the terms and
provisions of which are incorporated herein and expressly made a part hereof),
the Company hereby grants to Optionee the Option to purchase the aggregate
number of shares of Common Stock set forth on the Stock Option Certificate at
the price per share ("Option Price") set forth on such Certificate, subject to
any adjustment as provided in the Plan. The Option granted hereunder is not
intended to be an "incentive stock option" within the meaning of Section 422 of
the Code.
3. Term of Option. Subject to earlier termination, acceleration or
cancellation of the Option as provided herein, the term of the Option shall be
for a period ten (10) years from the date hereof. Subject to the provisions of
this Agreement, the Option shall be exercisable at such times and as to such
number of shares as determined on the schedule set forth on the Stock Option
Certificate. Upon and after a Change in Control, Optionee shall be entitled to
exercise the Option in whole or in part with respect to all of the shares
covered thereby.
4. Method of Exercise.
(a) Subject to the terms and conditions of this Agreement, the Option
may be exercised by written notice to the Company (the "Exercise Notice") at its
offices at 00xx xxx Xxxxxx Xxxxxx, Xxxxxxxxx Xxxxx, XX 00000 (or such other
offices of the Company which are hereinafter designated by the Company) to the
attention of the Secretary of the Company. The Exercise Notice (i) shall state
(A) the election to exercise the Option and (B) the total number of full shares
in respect to which it is being exercised, and (ii) shall be signed by the
person or persons exercising the Option.
(b) The Exercise Notice shall be accompanied by the Stock Option
Certificate. Optionee shall pay the total amount due resulting from such
exercise in any of the following forms: (i) in cash or its equivalent for the
full amount of the purchase price of such shares; (ii) by delivery of
previously-acquired shares of MAF Bancorp (that have been owned by the Optionee
for at least six months prior to the date of exercise, unless otherwise
permitted by the Committee) having an aggregate Fair Market Value at the time of
exercise equal to the total payment due from Optionee; (iii) by any other means
which the Committee determines to be consistent with the Plan's purpose and
applicable law; or (iv) by a combination of the methods described in (i), (ii)
and (iii) above. The Company shall have the power and the right to deduct or
withhold, or require an Optionee to pay to the Company the amount, in cash, of
any minimum federal, state, or local income, Social Security and Medicare taxes
required by law or regulation to be withheld as a result of the exercise, unless
Optionee delivers Previously-Acquired Shares or elects to have the Company
withhold from the shares purchased, shares having a Fair Market Value equal to
such required tax withholding amount. The amount of any tax withholding, whether
paid in cash or through the withholding of shares, may not be in excess of the
minimum amount of tax required to be withheld. Upon receipt of the foregoing,
the Company shall, as soon as practicable, issue the shares of Common Stock as
to which the Option has been duly exercised and shall return the Stock Option
Certificate, duly endorsed to reflect such exercise, to Optionee.
5. Restriction on Exercise. This Option may not be exercised if the
issuance of such shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law or regulation. As a condition to the
exercise of this Option, the Company may require Optionee to make any
representation and warranty to the Company as may be required by any applicable
law or regulation.
-3-
6. Effect of Termination of Employment or Other Relationship. The Option,
to the extent not theretofore exercised, shall terminate on Optionee's
Termination Date, except that:
(a) in the event a Termination Date occurs due to Optionee's Resignation
or Termination (other than in circumstances described in paragraphs (b) or (c)
below), Optionee may during the 90-day period following such Resignation or
Termination exercise the Option to the extent such Option was exercisable on
Optionee's Termination Date provided, however, that in no event may the Option
be exercised after the expiration of the term of the Option as described in
paragraph 3;
(b) in the event a Termination Date occurs under circumstances that
constitute Optionee's Retirement, or in the event of a Termination Date after a
Change in Control, Optionee may during the three-year period following such
Termination Date exercise the Option, whether or not all or part of the Option
was exercisable on Optionee's Termination Date, provided, however, that in no
event may the Option be exercised after the expiration of the term of the Option
as described in paragraph 3;
(c) in the event a Termination Date occurs due to Optionee's Termination
due to death or Termination or Resignation due to permanent disability, Optionee
or, in the event of death, Optionee's representative, may during the three-year
period following such Termination or Resignation exercise the Option, whether or
not all or part of the Option was exercisable on Optionee's Termination Date,
provided, however, that in no event may the Option be exercised after the
expiration of the term of the Option as described in paragraph 3; and
(d) in the event of Optionee's death during the 90-day or three-year
period described in paragraphs (a), (b) and (c) above, Optionee's personal
representative may, during the remainder of the 90-day or three-year period, as
applicable, exercise the Option to the extent the Option was exercisable at the
time of Optionee's death, provided, however, that in no event shall any Option
be exercised after the expiration of the term of the Option as described in
paragraph 3.
(e) In the event of a Termination For Cause, any unexercised portion of
the Option, whether vested or not vested, shall immediately terminate.
7. Nontransferability of Option.
(a) Except as provided below, the Option granted pursuant to this
Agreement may not be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, otherwise than by will or by the laws of descent and
distribution. Further, the Option granted to the Optionee pursuant to this
Agreement shall be exercisable during his or her lifetime only by such Optionee.
Notwithstanding the foregoing, the Optionee may transfer all or a portion of the
Option to: (a) the spouse, children or grandchildren of the Optionee ("Immediate
Family Members"); (b) a trust or trusts for the exclusive benefit of such
Immediate Family Members, or; (c) a partnership in which such Immediate Family
Members are the only partners, provided that: (i) there may be no consideration
for any such transfer; and (ii) subsequent transfers of the transferred Option
shall be prohibited except transfers back to the Optionee or those resulting
from the death of the Option holder.
(b) Following a transfer, any such Option shall continue to be subject to
the same terms and conditions as were applicable immediately prior to the
transfer. The provisions of Section 6 relating to the period of exercisability
and expiration of the Option shall continue to be applied with respect to the
original Optionee, and the Option shall be exercisable by the transferee only to
the extent, and for the periods, set forth in said Sections 6 and 3.
8. Compliance with Certain Laws and Regulations. If the Committee shall
determine, in its discretion, that the listing, registration or qualification of
the shares subject to the Option upon any securities exchange or under any law
or regulation, or that the consent or approval of any governmental regulatory
body is necessary or desirable in connection with the granting of the Option or
the acquisition of shares thereunder, Optionee shall supply the Committee or
Company, as the case may be, with such certificates, representations and
information as the Committee or Company, as the
-4-
case may be, may request and shall otherwise cooperate with the Company in
obtaining any such listing, registration, qualification, consent or approval.
9. Notices. Any notice provided for in this Agreement must be in writing
and must be either personally delivered, delivered by overnight courier, or
mailed by first class mail, to Optionee at the address set forth on the records
of the Company, to the Company at the address set forth or established pursuant
to paragraph 4, or such other address or to the attention of such other person
as the recipient party shall have specified by prior written notice to the
sending party. Any notice under this Agreement will be deemed to have been given
when received.
10. Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
11. Complete Agreement. This Agreement and those documents expressly
referred to herein embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
12. Counterparts. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
13. Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of and be enforceable by Optionee, the Company and their respective
permitted successors and assigns (including personal representatives, heirs and
legatees), and is intended to bind all successors and assigns of the respective
parties, except that Optionee may not assign any of Optionee's rights or
obligations under this Agreement except to the extent and in the manner
expressly permitted hereby.
14. Remedies. Each of the parties to this Agreement will be entitled to
enforce its rights under this Agreement specifically, to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in its favor. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its sole discretion apply
to any court of law or equity of competent jurisdiction for specific performance
and/or injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement.
15. Waiver or Modification. Any waiver or modification of any of the
provisions of this Agreement shall not be valid unless made in writing and
signed by the parties hereto. Waiver by either party of any breach of this
Agreement shall not operate as a waiver of any subsequent breach.
16. Rights of Employment. In no event shall the granting of this Option or
Optionee's acceptance hereof give or be deemed to give Optionee any right to be
retained as an employee of the Company.
[Signature Page Follows]
-5-
IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the ____ day of __________, 200__.
MAF BANCORP, INC.
By: _______________________________
Its: ______________________________
OPTIONEE
___________________________________
Printed Name:______________________
-6-
CERTIFICATE NUMBER NUMBER OF SHARES
[GRANT NO.] [OPTIONS GRANTED]
MAF BANCORP, INC.
STOCK OPTION CERTIFICATE
THIS CERTIFIES THAT ________________ has been awarded a NON-QUALIFIED STOCK
OPTION to purchase X,XXX shares of Common Stock, $.01 par value, of MAF BANCORP,
INC. (the "Company") at a price per share of $XX.XX (which is the average of the
high and low trading price of the Company's Common Stock on the date hereof and
which shall for all purposes constitute the "Fair Market Value"), subject to the
terms and conditions of this Certificate, the related Stock Option Agreement and
the MAF Bancorp, Inc. Incentive Compensation Plan ("Incentive Compensation
Plan").
Subject to earlier termination as provided in the Stock Option Agreement or
Incentive Compensation Plan, this OPTION shall expire ten (10) years from the
date of this Certificate. Except as may be otherwise provided in the Stock
Option Agreement or Incentive Compensation Plan, this OPTION shall be
exercisable as to all or a portion of the number of shares set forth above as
follows:
ON AND AFTER THE FOLLOWING
DATES, BUT PRIOR TO EXPIRATION CUMULATIVE SHARES VESTED
IN WITNESS WHEREOF, MAF BANCORP, INC. has caused this Stock Option
Certificate to be signed by its duly authorized officer this ___ day of
____________, 200__.
By: __________________________________
Its: _________________________________
-7-
