EXHIBIT 10.13
[NAME]
MAF BANCORP, INC.
A
Restricted Stock Unit Award (“RSU Award”) was granted by the Committee on
[DATE OF GRANT] to the Participant named on the attached Restricted Stock Unit
Certificate (“Participant”). This Agreement, along with the MAF Bancorp, Inc.
Incentive Compensation Plan (the “Plan”), govern the terms of this RSU Award.
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.
| 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 1.01 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
1934 (the “Exchange Act”); 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) |
consummation of a reorganization, merger, consolidation, sale of all or
substantially all the assets of the Bank or Company or similar transaction
occurs (each a “Business Combination”) that results in a change of
control. A Business Combination will not be deemed to result in a change of
control if: (1) all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Voting Stock immediately prior
to such Business Combination beneficially own, directly or indirectly, more than
50% of the total voting power represented by the voting securities entitled to
vote generally in the election of directors of the resulting entity from the
Business Combination (including, without limitation, an entity which as a result
of such transaction owns the Bank or Company or all or substantially all of the
Bank’s or Company’s assets either directly or through one or more
subsidiaries) in substantially the same proportions of such voting power as
their ownership of the Voting Stock immediately prior to the Business
Combination, and (2) at least a majority of the members of the board of
directors of the resulting entity from the Business Combination were members of
the Incumbent Board or Bank Incumbent Board, respectively, at the time of the
execution of the initial agreement, or action of the Incumbent Board or Bank
Incumbent Board, providing for such Business Combination; 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. § 574) (the “Control Regulations”), who was an
executive officer of the Company on the date of the adoption of the MAF Incentive
Compensation 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.
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| (c) |
“Resignation” means Participant’s relinquishment of service as an
employee or director with the Company and all Affiliates. |
| (d) |
“Termination” means a termination of the employment of Participant 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. |
| (e) |
“Termination Date” means the date on which a Resignation, Termination
or Termination For Cause occurs. |
| (f) |
“Termination For Cause” means a termination of the employment of
Participant by the Company or any Affiliate due to: |
| (i) |
The commission by Participant, as reasonably determined by the Committee, of any
theft, embezzlement or felony against, or in a matter related to, the Company or
any Affiliates; |
| (ii) |
The commission of an unlawful or criminal act by Participant 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; |
| (iii) |
The commission of an intentional act by Participant in the performance of
Participant’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; |
| (iv) |
Gross misconduct in, or the continued and willful refusal by the Participant
after written notice by the Company to make himself available for, the
performance of the Participant’s duties for the Company or a subsidiary; or |
| (v) |
Suspension due to the direction of any authorized bank regulatory agency that
the Participant be relieved of his or her duties and responsibilities to the
Company or a subsidiary. |
| 2. |
Grant and Designation of RSU Award. Upon the execution and delivery of
this Agreement and the related Restricted Stock Unit Certificate of even date
herewith, 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 Participant a Restricted Stock Unit, entitling the Participant to receive the
number of shares of Common Stock set forth on the Restricted Stock Unit
Certificate on the vesting dates indicated on the Restricted Stock Unit
Certificate. Except as otherwise provided below, the granting of this RSU Award
does not confer upon the Participant any rights as a shareholder, including the
right to vote, until such time as the shares of Common Stock covered by this RSU
Agreement are vested and distributed in accordance with the terms set forth in
this Agreement and the attached Restricted Stock Unit Certificate.
Notwithstanding the foregoing, the Participant shall have the right to receive
dividends paid on the number of |
3
| |
shares of Common Stock underlying this RSU
Award, to the extent such shares have not otherwise been distributed to the
Participant or forfeited in accordance with the terms of this Agreement. Such
dividends shall be paid in the same amount and at the same time (or as soon
thereafter as is administratively feasible) as dividends are paid on the Common
Stock. |
| 3. |
Tax Withholding. The Company shall have the power and the right to deduct
or withhold from cash compensation otherwise due to the Participant, the amount
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 vesting
and delivery of shares of Common Stock. Alternatively, subject to the
Company’s approval, the Participant may elect to pay such withholding
amount to the Company in cash or have the Company withhold from the shares
delivered, 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 RSU
Award has been vested. |
| 4. |
Restriction on Delivery. Shares of Common Stock underlying the RSU Award
may not be delivered if the issuance of such shares would constitute a violation
of any applicable federal or state securities or other law or regulation. As a
condition to the delivery of shares of Common Stock underlying the RSU Award,
the Company may require Participant to make any representation and warranty to
the Company as may be required by any applicable law or regulation. |
| 5. |
Effect of Termination of Employment or Other Relationship. The RSU Award,
to the extent not theretofore vested, shall terminate on Participant’s
Termination Date, except that: |
| (a) |
in the event a Termination Date occurs after a Change in Control, all unvested
shares of Common Stock underlying the RSU Award shall become vested and as soon
as practicable thereafter, be distributed to the Participant; and |
| (b) |
in the event a Termination Date occurs due to Participant’s Termination due
to death or Termination or Resignation due to permanent disability, all unvested
shares of Common Stock underlying the RSU Award shall become vested and as soon
as practicable thereafter, be distributed to the Participant or in the event of
death, Participant’s beneficiary. |
| 6. |
Nontransferability. The RSU Award made 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. |
| 7. |
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 RSU Award 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
RSU Award or the acquisition of shares thereunder, Participant shall supply the
Committee or Company, as the case may be, with such certificates,
representations and information as the Committee or Company, as the case may be,
may request and shall otherwise |
4
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cooperate with the Company in obtaining any such
listing, registration, qualification, consent or approval. |
| 8. |
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 Participant at the address set forth on the records of
the Company, to the Company at its offices at 00xx xxx Xxxxxx Xxxxxx,
Xxxxxxxxx Xxxxx, Xxxxxxxx 00000, 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. |
| 9. |
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. |
| 10. |
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. |
| 11. |
Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of and be enforceable by Participant, 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 Participant may not assign any of
Participant’s rights or obligations under this Agreement except to the
extent and in the manner expressly permitted hereby. |
| 12. |
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. 13. 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. |
| 13. |
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. |
| 14. |
Rights of Employment. In no event shall the granting of this RSU Award or
Participant’s acceptance hereof give or be deemed to give Participant any
right to be retained as an employee of the Company or any Affiliate. |
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| 15. |
IRC Section 409A. It is intended that the RSU Award and the exercise of
authority or discretion hereunder shall comply with IRC Section 409A so as not
to subject Participant to the payment of any interest or additional tax impose
under Section 409A. In furtherance of this intent, to the extent that any United
States Department of the Treasury regulations, guidance, interpretations or
changes to Section 409A would result in Participant becoming subject to interest
and additional tax under Section 409A of the Code, the Company and Participant
agree to amend this Award Agreement to bring the RSU Award into compliance with
Section 409A, provided however, that the Company shall be under no obligation to
so amend this Award Agreement if it increases the cost of the RSU Award to the
Company. |
IN WITNESS WHEREOF, MAF BANCORP, INC. has caused this Restricted Stock Unit Award Agreement to be signed
by its duly authorized officer.
MAF BANCORP, INC.
By:
__________________________
Its:
__________________________
By
signing below, the undersigned Participant accepts this RSU Award and acknowledges the
terms hereof.
__________________________
[NAME]
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Certificate Number
Number of Shares
[GRANT NUMBER]
[NUMBER OF SHARES]
MAF BANCORP, INC.
RESTRICTED STOCK UNIT
CERTIFICATE
THIS
CERTIFIES THAT [NAME] has been awarded RESTRICTED STOCK UNITS covering [NUMBER
OF SHARES] shares of Common Stock, $.01 par value, of MAF BANCORP, INC. (the
“Company”), subject to the terms and conditions of this Certificate, the related
Restricted Stock Unit Agreement and the MAF Bancorp, Inc. Incentive Compensation Plan
(“Plan”). The grant date of the RSU Award is [DATE OF GRANT].
Subject
to the terms provided in the Restricted Stock Unit Agreement or Plan, the shares of Common
Stock covered by this Restricted Stock Unit Certificate shall be subject to the vesting
schedule below. Assuming the Participant is employed by the Company, the Bank or an
Affiliate on the vesting date specified below (unless otherwise provided in the Restricted
Stock Unit Agreement), the corresponding shares of Common Stock shall be delivered
pursuant to the Participant’s instructions as soon as practicable thereafter.
Vesting Date
Shares Vested
[VESTING DATE]
[NUMBER VESTED]
IN WITNESS WHEREOF, MAF BANCORP, INC. has caused this Restricted Stock Unit Certificate to be signed by
its duly authorized officer.
By:
__________________________
Its:
__________________________
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