EXHIBIT 10.32
FORM OF EMPLOYMENT AGREEMENT, AS AMENDED, BETWEEN MAF BANCORP, INC.
AND XXXXX XXXXXXX, XXXXXXX XXXXXXX AND XXXXX XXXXXXXXX
The attached Employment Agreement dated April 19, 1990, as amended, between
MAF Bancorp, Inc. 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. By action of the Board of Directors of MAF Bancorp,
Inc., the term of each of these agreements has been extended to December 31,
2007.
Parties to Employment Agreement:
MAF Bancorp, Inc. and Xxxxxxx Xxxxxxx(1)
MAF Bancorp, Inc. and Xxxxx X. Xxxxxxxxx(1)
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(1) Section 3(a) of the Employment Agreements provide for minimum annual
salaries subject to annual review. Based on the recommendation of the
Administrative/Compensation Committee, the Board of Directors has set
annual salaries for 2005 of $421,000, $421,000 and $291,000 for Messrs.
X. Xxxxxxx, X. Xxxxxxx and X. Xxxxxxxxx, respectfully.
MAF BANCORP, INC.
EMPLOYMENT AGREEMENT
This AGREEMENT is made effective as of April 19, 1990 by and between MAF
Bancorp, Inc. (the "Holding Company"), a corporation organized under the laws of
the State of Delaware, with its principal administrative office at 55th & Xxxxxx
Streets, Clarendon Hills, Illinois, and Xxxxx X. Xxxxxxx ("Executive"). Any
reference to "Bank" herein shall mean Mid America Federal Savings Bank or any
successor thereto.
WHEREAS, the Holding Company 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 Holding
Company on a full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual convenants 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 Holding
Company. During said period, Executive also agrees to serve, if elected, as an
officer and director of any subsidiary or affiliate of the Holding Company.
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 Holding Company; provided,
however, that with the approval of the Board of Directors of the Holding Company
("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
Holding Company, or materially affect the performance of Executive's duties
pursuant to this Agreement. (c) In the event that Executive's duties and
responsibilities with respect to the Bank are temporarily or permanently
terminated pursuant to Sections 8 or 16 of the Employment Agreement dated April
19, 1990, between Executive and the Bank ("Bank Agreement") and the course of
conduct upon which such termination is based would not constitute grounds for
Termination for Cause under Section 8 of this Agreement, then Executive shall
assume such duties and responsibilities formerly performed at the Bank as part
of his duties and responsibilities as Chief Executive Officer and Chairman of
the Board of Directors of the Holding Company and receive the compensation
benefits provided hereunder by the Holding Company. Nothing in this provision
shall be interpreted as restricting the Holding Company's right to remove
Executive for Cause in accordance with Section 8 of 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 Holding
Company 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 Holding Company shall provide Executive at no cost to
Executive with all such other benefits as are provided uniformly to permanent
full-time employees of the Holding Company and the Bank.
(b) The Holding Company 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 Holding Company 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 Holding Company 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 Holding Company 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 Holding Company 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.
(d) In the event that Executive assumes additional duties and
responsibilities pursuant to Section 2(c) of this Agreement by reason of one of
the circumstances contained in Section 2(c) of this Agreement, and the Executive
receives or will receive less than the full amount of compensation and benefits
formerly entitled to him under the Bank Agreement, the Holding Company shall
assume the obligation to provide Executive with his compensation and benefits in
accordance with the Bank Agreement less any compensation and benefits received
from the Bank, subject to the terms and conditions of this Agreement, including
the Termination for Cause provisions in Section 8.
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 16.
(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 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 Holding Company'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 function,
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 Holding Company in which the
Holding Company is not the resulting entity or transfer of all or substantially
all of the assets of Holding Company in which the Holding Company is not the
resulting entity, or (D) breach of this Agreement by the Holding Company. 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 Holding Company
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 only to 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 Holding Company
will cause to be continued life, health and disability coverage substantially
identical to the coverage maintained by the Holding Company 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 Holding Company, as set forth below. For
purposes of this Agreement, a "Change in Control" of 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, 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 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 Holding Company representing 20% or more of the
Holding Company's outstanding securities ordinarily having the right to vote at
the election of directors except for securities purchased by any employee stock
ownership plan and trust of the Bank; or (b) individuals who constitute the
Board 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 Holding Company's shareholders 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 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 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 Holding Company 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 Holding Company 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 Holding Company will cause to be continued life,
health and disability coverage substantially identical to the coverage
maintained by the Bank for the Executive prior to his severance. Such coverage
shall cease upon the earlier of Executive's employment by another employer or
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 Section 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 Holding
Company 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 Holding Company 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 Holding Company may
terminate Executive's employment for "Disability."
(b) The Holding Company 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 Holding
Company in the same capacity as he was employed prior to his termination for
Disability and pursuant to an employment agreement between Executive and the
Holding Company; (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 or Holding Company 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 or Holding Company.
(c) The Holding Company will cause to be continued life, health and
disability coverage substantially identical to the coverage maintained by the
Holding Company for the 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 Holding Company, in the same capacity as he was
employed prior to his termination for Disability and pursuant to an employment
agreement between Executive and the Holding Company; (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 Holding Company of the Executive based on "Retirement"
shall mean termination 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 Holding Company and other plans to which Executive is a party. In
addition, the Holding Company will cause to be continued health coverage
substantially identical to the coverage maintained by the Holding Company and
the Bank for Executive prior to his Retirement until his death.
8. TERMINATION FOR CAUSE
The term "Termination for Cause" shall mean termination upon intentional
failure to perform stated duties, personal dishonesty which results in loss to
the Holding Company or one of its affiliates or willful violation of any law,
rule, regulation or final cease and desist order which results in substantial
loss to the Holding Company or one of its affiliates or any material breach of
this Agreement. For purposes of this Section, no act, or the failure to act, on
Executive's part shall be "willful" unless done, or omitted to be done, not in
good faith and without reasonable belief that the action or omission was in the
best interest of the Holding Company or its affiliates. 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 judgement, 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
Holding Company 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 Holding Company 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 Holding Company 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
Holding Company. In the event of a breach or threatened breach by the Executive
of the provisions of this Section, the Holding Company 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
Holding Company 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 Holding Company 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 Holding Company. The Holding Company guarantees
payment and provision of all amounts and benefits due to the Executive under the
Employment Agreement by and between the Bank and the Executive, if any amounts
and benefits 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 Holding Company
or any predecessor of the Holding Company 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. EFFECT OF ACTION UNDER BANK AGREEMENT.
Notwithstanding any provision herein to the contrary, to the extent that
compensation payments and benefits are paid to or received by Executive under
the Employment Agreement dated April 19, 1990, between Executive and the Bank,
such compensation payments and benefits paid by the Bank will be deemed to
satisfy the corresponding obligations of the Holding Company under this
Agreement.
15. 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 Holding Company and their respective successors and assigns.
16. 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 of
such term or condition for the future of as to any act other than that
specifically waived.
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 laws of Delaware.
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 Holding Company.
22. INDEMNIFICATION
The Holding Company 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 Delaware 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 Holding Company (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 Holding Company, if
such action is brought against Executive in his capacity as a officer or
director of the Holding Company. 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 Holding Company 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: MAF BANCORP, INC.
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
------------------------------- ----------------------------------
Secretary President
(SEAL)
WITNESS
/s/ Xxxxxxx X. Xxxxxxx /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: MAF BANCORP, INC.
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 Holding
Company 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 Holding Company ("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 Holding Company with
written notice at least ten (10) days and not more than twenty (20) days prior
to such anniversary date. If either the Holding Company 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: MAF BANCORP, INC.
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 Holding Company 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 Holding Company 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 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: MAF BANCORP, INC.
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 Holding Company, any of its affiliates, or any
person who acquires ownership or effective control of the Holding Company or
ownership of a substantial portion of the 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 Holding Company, which may be the
accounting firm then regularly retained by the Holding Company (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
Holding Company and the Executive, within five (5) days of a date of
termination, if applicable, or such earlier time as is requested by the Holding
Company 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 Holding Company 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 Holding Company should have made
Gross-Up Payments ("Underpayment"), or that Gross-Up Payments will have been
made by the Holding Company 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 Holding Company to
or for the benefit of the Executive. In the case of an Overpayment, the
Executive shall, at the direction and expense of the Holding Company, 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 Holding Company, and otherwise reasonably cooperate with the Holding Company
to correct such Overpayment, including repayment of such Overpayment to the
Holding Company.
Effect of Certain Accounting Rules. The Executive acknowledges that it is in the
Holding Company's and Bank'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 Holding Company does not
believe that any provision of the foregoing Amendment to Employment Agreement
will affect the Holding Company's or Bank'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 Holding Company's or Bank'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 Holding Company or Bank 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 Holding Company or Bank 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 Holding Company 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: MAF BANCORP, INC.
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
------------------------------- -----------------------------
Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxx
Corporate Secretary President
EMPLOYEE
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Xxxxx Xxxxxxx
AMENDMENTS TO MAF BANCORP EMPLOYMENT AGREEMENT
SECTION 4(d) SHALL BE REVISED TO READ AS FOLLOWS:
------------------------------------------------
Upon the occurrence of an Event of Termination, the Holding Company will cause
to be continued life, health and disability coverage substantially identical to
the coverage maintained by the Bank for Executive and his or her dependents
prior to this termination. Such coverage shall cease upon the earlier of
Executive's obtaining similar coverage by another employer or thirty-six (36)
months from the date of Executive's termination. In the event the Executive
obtains new employment and receives less coverage for life, health or
disability, the Holding Company shall provide coverage substantially identical
to the coverage maintained by the Bank for the Executive and his or her
dependents prior to termination for a period of thirty-six (36) months from the
date of Executive's termination.
SECTION 5(d) SHALL BE REVISED TO READ AS FOLLOWS:
------------------------------------------------
Upon the occurrence of a Change in Control followed at any time during the term
of this Agreement by the Executive's voluntary or involuntary termination of
employment, the Holding Company will cause to be continued life, health and
disability coverage substantially identical to the coverage maintained by the
Bank for Executive and his or her dependents prior to his severance. Such
coverage shall cease upon the earlier of Executive's obtaining similar coverage
by another employer or thirty-six (36) months from the date of Executive's
termination. In the event the Executive obtains new employment and receives less
coverage for life, health or disability, the Holding Company shall provide
coverage substantially identical to the coverage maintained by the Bank for the
Executive and his or her dependents prior to termination for a period of thirty-
six (36) months from the date of Executive's termination.
IN WITNESS WHEREOF, the parties have executed this Amendment effective this
December 20, 2000.
ATTEST: MAF BANCORP, INC.
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
------------------------------- ----------------------------------
Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxx
Secretary President
EMPLOYEE
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Xxxxx Xxxxxxx
