EXHIBIT NO. 10.22 - FORM OF SPECIAL TERMINATION AGREEMENT, AS
AMENDED, BETWEEN MID AMERICA BANK, fsb AND XXXXXXX XXXXXX AND
VARIOUS OFFICERS.
The attached Special Termination Agreement dated April 19, 1990, as amended,
between Mid America Bank and Xxxxxxx Xxxxxx is substantially identical in all
material respects (except as otherwise noted below) with the other executive
officer contracts listed below which are not being filed. By action of the Board
of Directors of Mid America Bank, fsb, the term of each of these agreements has
been extended to December 31, 2004.
Parties to Special Termination Agreement:
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Mid America Bank and Xxxxxx X. Xxxxxxx
Mid America Bank and Xxxxxxx X. Xxxxxxx
Mid America Bank and Xxxxxxx Xxxxxx
Mid America Bank and Xxxxxx Xxxxx
Mid America Bank and Xxxxxx Xxxxxxx
Mid America Bank and Xxxxx Xxxxxxxx (1)
Mid America Bank and Xxxx Xxxxxxxxx Xxxxxx (1)
(1) The provisions contained in section 3(f) of the amended agreement under
the heading "Effect of Certain Accounting Rules" are not included in the
agreements of Xxxxx Xxxxxxxx or Xxxx Xxxxxxxxx Xxxxxx.
MID AMERICA FEDERAL SAVINGS BANK
SPECIAL TERMINATION AGREEMENT
This AGREEMENT is made effective as of April 19, 1990 by and between
Mid America Federal Savings Bank (the "Bank"), a federally chartered savings
institution, with its office at 55th & Xxxxxx Street, Clarendon Hills, Illinois,
and Xxxxxxx Xxxxxx (the "Executive"). The Bank is the wholly-owned subsidiary of
the Holding Company (the "Company"), a corporation organized under the laws of
the State of Delaware.
WHEREAS, the Bank recognizes the substantial contribution Executive
has made to the Bank and wishes to protect his position therewith for the period
provided in this Agreement; and
WHEREAS, Executive has been elected to, and has agreed to serve in the
position of Senior Vice President for the Bank, a position of substantial
responsibility;
NOW, THEREFORE, in consideration of the contribution and
responsibilities of Executive, and upon the other terms and conditions
hereinafter provided, the parties hereto agree as follows:
1. TERM OF AGREEMENT.
The term of this Agreement shall be deemed to have commenced as of the
date first above written and shall continue for a period of thirty-six (36) full
calendar months thereafter. Commencing on the first anniversary date of this
Agreement and continuing at each anniversary date thereafter, this 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 expiration of
such period, then the term of this Agreement shall cease at the end of twenty-
four (24) months following the next anniversary date, or unless the Executive's
employment is voluntarily or involuntarily terminated with the Bank pursuant to
Section 2 hereof.
2. PAYMENTS TO EXECUTIVE UPON CHANGE IN CONTROL.
(a) Upon the occurrence of a Change in Control of the Bank or the
Company (as herein defined) followed at any time during the term of this
Agreement by the voluntary or involuntary termination of Executive's employment,
other than for Cause, as defined in Section 2(c) hereof, the provisions of
Section 3 shall apply. Upon the occurrence of a Change in Control, Executive
shall have the right to elect to voluntarily terminate his employment at any
time during the term of this Agreement following any demotion, loss of title,
office or significant authority, reduction in his annual compensation, or
relocation of his principal place of employment by more than 50 miles from its
location immediately prior to the Change in Control.
(b) Definition of a Change in Control. A "Change in Control" of the
Bank or the Company shall mean a change in control 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
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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 Holding Company representing 20% or more
of the Bank's or Holding Company's outstanding securities ordinarily having the
right to vote at an 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
Directors of the Company or the Bank 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 shareholders was
approved by the Nominating Committee, shall be, for purposes of this clause (b),
considered as though he were a member of the Incumbent Board; or (c) merger,
consolidation or sale of all or substantially all the assets of the Bank or
Company occurs; or (d) 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 the reorganization, merger or
consolidation of the 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 Company; or (e) a tender offer is made for 20% or more of
the outstanding securities of the Bank or Holding Company.
(c) Executive shall not have the right to receive termination benefits
pursuant to Section 3 hereof upon 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
material 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 Board of Directors of the
Bank 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 or limited rights granted to Executive
under any stock option plan of the Bank, the Company or any subsidiary or
affiliate thereof, shall become null and void effective upon Executive's receipt
of Notice of Termination for Cause and shall not be exercisable by Executive at
any time subsequent to such Termination for Cause.
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3. TERMINATION BENEFITS.
(a) Upon the occurrence of a Change in Control, followed at any time
during the term of this Agreement by the voluntary or involuntary termination of
Executive's employment, other than for Termination for Cause, the Bank and the
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
annual base salary paid to Executive for the three (3) years immediately
preceding Executive's termination. In the event the Executive has not been
employed by the Bank or Holding Company during all or part of the three
immediately preceding years, the annual base salary paid to Executive for such
periods shall, for purposes of this Section 3, be deemed to be equal to the
Executive's initial base salary upon commencing employment adjusted to reflect
assumed annual base salary increases of ten percent (10%). At the discretion of
Executive, upon an election pursuant to Section 3(e) hereof, such payment may be
made in a lump sum immediately upon severance of Executive's employment or paid,
on a pro rata basis, semi-monthly during the thirty-six (36) months following
the Executive's termination.
(b) Upon the occurrence of a Change in Control of the Bank or the
Company followed at any time during the term of this Agreement by Executive's
voluntary or involuntary termination of employment, other than for Termination
for Cause, the Bank shall 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 obtaining similar coverage by another employer or twelve (12) 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 Bank
shall provide coverage substantially identical to the coverage maintained by the
Bank for the Executive prior to termination for a period of twelve (12) months.
(c) Upon the occurrence of a Change in Control, the Executive will
have such rights as specified in the 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.
(d) Upon a Change in Control, the Executive will be entitled to the
benefits under the Bank's Management Recognition and Retention Plans.
(e) On an annual basis Executive shall elect whether, in the event
amounts are payable under Sections 3(a) hereof, such amounts shall be paid in a
lump sum or on a pro rata basis pursuant to such sections. Such election shall
be irrevocable for the year for which such election is made.
(f) Notwithstanding the preceding paragraphs of this Section 3, in the
event that:
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(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 Internal Revenue Code of 1986 (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 3 shall be determined by Executive. In the event that
Executive receives the Non-Triggering Amount pursuant to this
paragraph (f) 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 or
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.
4. NOTICE OF TERMINATION.
Any purported termination by the Bank 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 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 there from 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.
5. SOURCE OF PAYMENTS.
It is intended by the parties hereto that all payments provided in
this Agreement shall be paid in cash or check from the general funds of the
Bank. The Company, however, guarantees payment and provision of all amounts and
benefits due hereunder to Executive, if such amounts
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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 Company.
6. EFFECT ON PRIOR AGREEMENT AND EXISTING BENEFIT PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior agreement between the Bank and Executive, except
that this Agreement shall not affect or operate to reduce any benefit or
compensation inuring to 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.
7. 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, the Bank and their respective successors and assigns.
8. 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 or as to any act
other than that specifically waived.
9. REQUIRED REGULATORY PROVISIONS.
(a) The Bank may terminate the Executive's employment at any time, but
any termination by the Bank, other than Termination for Cause, shall not
prejudice Executive's right to compensation or other benefits under this
Agreement. Executive shall not have the right to receive compensation or other
benefits for any period after Termination for Cause as defined in Section 2(c)
hereinabove.
(b) If the Executive 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
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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 Executive 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 Executive 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 (S) 1818(e)) or 8(g) (12 USC (S) 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 (S)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.
10. REINSTATEMENT OF BENEFITS UNDER 9(b).
In the event Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice described in
Section 9(b) hereof (the "Notice") during the term of this Agreement and a
Change in Control, as defined herein, occurs, the Bank will assume its
obligation to pay and the Executive will be entitled to receive all of the
termination benefits provided for under Section 3 of this Agreement upon the
Bank's receipt of a dismissal of charges in the Notice.
11. 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.
12. HEADINGS FOR REFERENCE ONLY.
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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.
13. GOVERNING LAW.
The validity, interpretation, performance, and enforcement of this
Agreement shall be governed by Federal law.
14. 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.
15. 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 Company
pursuant to Section 5 hereof.
16. SIGNATURES.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed
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/ Xxxxx Xxxxxxx
--------------------------- -------------------------------
Secretary Chief Executive Officer
WITNESS:
/s/ Xxxxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx
--------------------------- -------------------------------
Executive
Seal
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AMENDMENT TO SPECIAL TERMINATION AGREEMENT
------------------------------------------
OF XXX XXXXXX
-------------
The undersigned, in consideration of their mutual promises and other good and
valuable consideration, hereby agree to amend the Special Termination Agreement
of Xxx Xxxxxx dated April 19, 1990 (the "Agreement") by adding the following
two new sentences to the end of Section 2(b) 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. (S) 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/ Xxxxx Xxxxxxx
------------------ -----------------
Xxxxxxx Xxxxxx Xxxxx Xxxxxxx
Corporate Secretary Chairman of the Board
EMPLOYEE
By: /s/ Xxx Xxxxxx
------------------
Xxx Xxxxxx
9
Amendment to Special Termination Agreement
of Xxxxxxx Xxxxxx
The undersigned, in consideration of their mutual promises and other good and
valuable consideration, hereby agree to amend the Special Termination Agreement
of Xxxxxxx Xxxxxx dated April 19, 1990, as amended, (the "Agreement"), by
revising the third paragraph of the Agreement as shown below, and by revising
Section 1 to read as shown below, all such amendments to be effective as of the
date shown below.
(Revised third paragraph)
WHEREAS, Executive has been elected to and has agreed to serve in the position
of Senior Vice President-Operations and Information Systems for the Bank, a
position of substantial responsibility which will require Executive to
render administrative and management services to the Bank such as are
customarily performed by persons in a similar executive capacity;
(Revised Section 1)
1. TERM OF AGREEMENT.
The term of this Agreement shall be deemed to have commenced as of the date
first above written and shall continue for a period of thirty-six (36) full
calendar months thereafter. At each anniversary date, 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, 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 for an additional period, the Agreement shall cease at the
end of its remaining term unless the Executive's employment is voluntarily or
involuntarily terminated with the Bank pursuant to Section 2 hereof.
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/ Xxxxx Xxxxxxx
------------------ -----------------
Xxxxxxx Xxxxxx Xxxxx Xxxxxxx
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Corporate Secretary Chairman and CEO
EMPLOYEE
By: /s/ Xxxxxxx X. Xxxxxx
--------------------
Xxxxxxx Xxxxxx
11
Amendment to Special Termination Agreement
of Xxxxxxx Xxxxxx
The undersigned, in consideration of their mutual promises and other good and
valuable consideration, hereby agree to amend the Employment Agreement of
Xxxxxxx Xxxxxx dated April 19, 1990, as amended, (the "Agreement"), as shown
below. Such amendments shall be effective as of the date shown below.
1. Section 2(b)(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 Company representing 20% or more of the Bank's or the 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 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 2(b)(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 Company.
3. Section 2(b)(iii)(d) shall be revised to read as follows:
(d) 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 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 Company, and
such proxy statement proposal is approved by the shareholders of the
Company.
4. Section 15, "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
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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 judgement, arbitration or settlement. Such payments are
guaranteed by the Company pursuant to Section 5 hereof.
6. Section 3(a) 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/ Xxxxx Xxxxxxx
------------------ -----------------
Xxxxxxx Xxxxxx Xxxxx Xxxxxxx
Corporate Secretary Chairman of the Board and
Chief Executive Officer
EMPLOYEE
By: /s/ Xxxxxxx Xxxxxx
------------------
Xxxxxxx Xxxxxx
13
Amendment to Special Termination Agreement
of Xxxxxxx Xxxxxx
The undersigned, in consideration of their mutual promises and other good and
valuable consideration, hereby agree to amend the Employment Agreement of
Xxxxxxx Xxxxxx dated April 19, 1990, as amended, (the "Agreement"), as shown
below. Such amendments shall be effective as of the date shown below.
1. Section 3(a) 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 voluntary or involuntary termination of
Executive's employment, other than for Termination for Cause, the Bank and
the 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 annual compensation paid to Executive for the three (3)
years immediately preceding Executive's termination. 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 Executive, upon an
election pursuant to Section 3(e) hereof, such payment may be made in a
lump sum immediately upon severance of Executive's employment or paid, on a
pro rata basis, semi-monthly during the thirty-six (36) months following
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/ Xxxxx Xxxxxxx
------------------- ----------------------
Xxxxxxx Xxxxxx Xxxxx Xxxxxxx
Corporate Secretary Chief Executive Officer
EMPLOYEE
By: /s/ Xxxxxxx Xxxxxx
----------------------
Xxxxxxx Xxxxxx
14
Amendment to Special Termination Agreement of Xxxxxxx Xxxxxx
The undersigned, in consideration of their mutual promises and other good and
valuable consideration, hereby agree to amend the Special Termination Agreement
of Xxxxxxx Xxxxxx dated April 19, 1990, as amended, (the "Agreement"), as shown
below. Such amendment shall be effective as of the date shown below.
Section 3(f) shall be revised to read as follows:
Notwithstanding the preceding paragraphs of this Section 3, 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 3(a) 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 3(a) 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 3(f) 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 Special Termination 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 Special
Termination 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/ Xxxxx Xxxxxxx
------------------------------ ---------------------------------
Xxxxxxx Xxxxxx Xxxxx Xxxxxxx
Corporate Secretary Chief Executive Officer
EMPLOYEE
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Xxxxxxx Xxxxxx
3
Amendment to Mid America Bank Special Termination Agreement
Section 3(b) shall be revised to read as follows:
-------------------------------------------------
Upon the occurrence of a Change in Control of the Bank or the Company followed
at any time during the term of this Agreement by Executive's voluntary or
involuntary termination of employment, other than for Termination for Cause, the
Bank shall 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 Bank 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: MID AMERICA BANK, fsb
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxx
------------------ -----------------
Xxxxxxx Xxxxxx Xxxxx Xxxxxxx
Corporate Secretary Chief Executive Officer
EMPLOYEE
By: /s/ Xxxxxxx Xxxxxx
------------------
