Exhibit No. 10(xiv) - Employment Agreement between MAF Bancorp, Inc. and ▇▇▇▇▇
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MAF BANCORP, INC.
EMPLOYMENT AGREEMENT
This AGREEMENT, is made effective as of January 1, 1999 ("Effective Date"),
by and between MAF BANCORP, INC., a Delaware corporation (the "Company") and
▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Executive").
WHEREAS, the Executive was previously employed by Westco Bancorp, Inc.
("Westco") and by the First Federal Savings and Loan Association of Westchester
(the "Westco Subsidiary"); and
WHEREAS, Westco has merged with and into the Company and the Westco
Subsidiary has become a wholly-owned subsidiary of the Company through a merger
with Mid America Bank, fsb (the "Bank"); and
WHEREAS, the Company desires to provide for the employment of the Executive
by the Company and the Bank following the Merger and the termination of his
employment agreements with Westco and the Westco Subsidiary ("Westco Employment
Agreements"); and
WHEREAS, the Executive is willing to commit himself to serving the Company
and the Bank on the terms and conditions herein provided;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. POSITION AND RESPONSIBILITIES.
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(a) Executive shall be employed as an Executive Vice President of the
Company and of the Bank effective as of the date hereof for the Period of
Employment as defined hereafter. The Executive shall report to the Chairman of
the Board and Chief Executive Officer of the Company (the "CEO"). The
Executive's duties and responsibilities shall consist of such duties and
responsibilities as may from time to time be assigned to the Executive by the
CEO, which duties and responsibilities shall be duties customary for an
Executive Vice President of the Company or Bank and will initially involve
directing and expanding the lending lines of business that Westco and the Westco
Subsidiary have developed in the Lincoln Park and Lakeview areas of Chicago,
representing the Company in identifying merger and acquisition candidates,
maintaining the retail banking customer relationships in the Westco and Westco
Subsidiary offices, representing the Bank in trade association activities and
participating in the decision-making process and meetings of the Company's and
Bank's senior management. The Executive shall devote substantially all of 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 Company and the Bank.
(b) At the first regularly scheduled meeting of their respective Board of
Directors after the Effective Date, the Company and Bank shall cause Executive
to be elected to the Board of Directors of the Company and the Bank for a term
expiring at the Company's 1999 Annual Meeting of Stockholders and to nominate
the Executive for election at that meeting for a term
expiring at the Company's 2002 Annual Meeting of Stockholders. Executive
acknowledges that for so long as he is an employee of the Company or the Bank,
he will not be entitled to any compensation in connection with his service as a
director, other than the annual retainer then paid to employee-directors. In the
event he becomes a non-employee director, Executive will be entitled to such
compensation, including stock option awards, as may then be paid to non-employee
directors.
2. PERIOD OF EMPLOYMENT. The period of the Executive's employment under
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this Agreement (the "Period of Employment") as an Executive Vice President shall
commence upon the Effective Date hereof and shall continue for a period of
thirty-six (36) full calendar months thereafter.
3. COMPENSATION AND REIMBURSEMENT.
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(a) Salary. During the Period of Employment, the Bank shall pay the
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Executive the compensation specified in this Agreement for the services
performed hereunder. The Bank shall pay the Executive as compensation a base
salary ("Base Salary") of $205,000 per year.
(b) Bonuses.
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(i) In consideration of the Executive's agreement to terminate his
Westco and Westco Subsidiary Employment Agreements and his entitlement to any
amounts thereunder, and of his agreement to continue in the employ of the
Company under the terms described in this Agreement, the Executive shall
receive a retention bonus in an amount equal to $920,000, less applicable state
and federal withholding taxes. The retention bonus shall be paid in three
installments: the first installment of $75,000 shall, to the extent not paid by
Westco or the Westco Subsidiary prior to the Effective Date, be paid no later
than January 10, 1999; the second installment of $650,000 shall be paid on April
1, 1999; and the third installment of $195,000 shall be paid on April 1, 2000.
The Bank shall increase the amount of the third installment by the amount of
interest that would have been credited on such amount as if it had been deferred
under the Bank's Executive Deferred Compensation Plan on April 1, 1999. In the
event of Executive's death or termination of employment for any reason prior to
the full payment of the retention bonus, the retention bonus shall be paid to
the Executive or to his designated beneficiary at the dates set forth above.
(ii) The Executive shall be eligible for consideration in 1999 and
subsequent years for annual incentive bonuses on the same basis as any annual
incentive bonus payable to other executives of the Company participating in Tier
II of the MAF Bancorp, Inc. Annual Incentive Plan and the plans described in
paragraph 3(c) below ("Comparable Executives") as determined by the Compensation
Committee of the Company's Board of Directors. Executive acknowledges that under
the Company's current compensation program, Comparable Executives participate in
Tier II of the annual incentive and other plans and are eligible to receive
annual bonuses in the range of 40% to 60% of Base Salary assuming certain safety
and soundness standards are maintained and the Company's earnings performance is
between target and superior, as such terms are defined under the annual
incentive plan.
(c) Options.
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(i) The Company shall grant to Executive an option to purchase
10,000 shares of Company common stock as of the Effective Date, or if later, the
date in January 1999 on which the Company grants options to Comparable
Executives. Such option shall be granted under the Company's 1990 Incentive
Stock Option Plan (the "Incentive Plan") and shall be on the same terms and
conditions as non-qualified options granted in January 1999 to Comparable
Executives as part of the Company's annual option award program. The Executive
shall be entitled to receive additional option grants under the Incentive Plan
in each of 2000, 2001 and 2002 on the same basis as such grants are made to
Comparable Executives.
(ii) In addition, on the later of the Effective Date or the date in
1999 on which grants are made to Comparable Executives, the Executive will be
eligible for consideration to receive stock option grants under the 1993 Premium
Price Stock Option Plan and performance unit awards under the Company's
Shareholder Value Long-Term Incentive Plan on the same basis as grants and
awards are made to Comparable Executives. The Executive shall be entitled to
receive additional grants and awards under these Plans in each of 2000, 2001 and
2002 on the same basis as such grants are made to Comparable Executives.
(d) Vacation; Fringe Benefits. During the Period of Employment, the
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Executive shall be entitled to a paid vacation, periods of absence occasioned by
illness and reasonable leaves of absence, automobile allowance, and to expense
reimbursement related to country club dues, participation in and attendance at
professional and civic organizations, meetings and conventions, in each instance
in accordance with Company policies applicable to Comparable Executives.
(e) Benefit Plans. Except as set forth below, the Executive shall be
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eligible to participate in or receive benefits under any employee benefit plans
of the Company and Bank including, but not limited to, profit sharing and 401(k)
plans, employee stock ownership (ESOP) plans, health-and-accident plans, medical
coverage or any other employee benefit plans or arrangements, subject to and on
a basis consistent with the terms, conditions and overall administration of such
plans and arrangements. Nothing paid to the Executive under any such plan or
arrangement shall be deemed to be in lieu of other compensation to which the
Executive is entitled under this Agreement. In addition, Executive shall be
entitled to participate in other executive benefit plans at the same level as
Comparable Executives. In addition to the stock option plans and annual
incentive plan described above, these plans shall include the Mid America Bank
Executive Deferred Compensation Plan, the Mid America Bank Directors Deferred
Compensation Plan and the Mid America Bank Supplemental Executive Retirement
Plan; provided, however, that in the event of a change in control (as defined in
the Deferred Compensation Plans and the Supplemental Executive Retirement Plan),
the Executive shall not be entitled to receive any additional years of service
credit or other incremental benefits applicable to other participants under such
Plans in connection with a change in control. For purposes of vesting and
eligibility to participate in such plans (but not for purposes of determining
benefits thereunder), Executive shall be given credit for Executive's service
with Westco and the Westco Subsidiary.
4. TERMINATION; NOTICE.
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(a) The Company may terminate the Executive's employment with the Company
and the Bank at any time, with or without Cause. The Executive may terminate his
employment with the Company and Bank at any time for any reason.
(b) As used in this Agreement, an "Event of Termination" shall mean:
(i) the termination by the Company and the Bank of the Executive's
full-time employment hereunder for any reason other than for Cause, death or
Disability, or
(ii) the voluntary termination by the Executive of employment with
the Company and the Bank following a substantial breach of this Agreement by the
Company or Bank which breach is not cured by the Company or Bank within thirty
(30) days following the date the Executive gives written Notice of Termination
indicating the Executive's intention to voluntarily terminate employment as a
result thereof.
(c) Following the occurrence of an Event of Termination, the Bank shall
continue to pay to the 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, the Base Salary and the annual incentive
bonus described in paragraph 3(b)(ii) above and to continue the life, medical
and other insurance benefits otherwise provided hereunder for the remainder of
the Period of Employment, as if Executive's employment continued hereunder, in
exchange for which the Executive shall execute and deliver to the Bank a release
and settlement agreement pursuant to which the Executive shall waive any and all
claims resulting from employment at or termination from the Bank other than
payments or benefits which are expressly provided for in this Agreement.
(d) The term "for Cause" shall mean termination because of the Executive's
personal dishonesty, incompetence, willful misconduct, any breach of fiduciary
duty involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule, or regulation (other than traffic violations
or similar offenses) or final cease-and-desist order, or material breach of any
provision of this Agreement. In determining incompetence, the acts or omissions
shall be measured against standards generally prevailing in the savings
institution industry. In determining willfulness, no act or failure to act on
the Executive's part shall be considered "willful" unless done or omitted to be
done by him not in good faith and without reasonable belief that his action or
omission was in the best interests of the Bank.
(e) The term "Disability" shall mean the Executive's absence from his
duties on a full-time basis for six (6) consecutive months as a result of his
incapacity due to physical or mental illness and his failure to return to full-
time performance of his duties within thirty (30) days after written notice of
potential termination is given to Executive by the Company.
(f) Any termination by the Company or by Executive shall be communicated
by Notice of Termination to the other party hereto and the termination shall
become effective as of the "Date of Termination" with respect thereto. 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 the termination. The "Date of Termination" shall
be
(i) thirty (30) days after the Notice of Termination is given if
the Notice of Termination is given by the Company without Cause or due to
Disability, or by the Executive in the absence of a substantial breach of the
Agreement; or
(ii) the date the Notice of Termination is given if the termination
is by the Company for Cause; or
(iii) thirty (30) days after the Notice of Termination is given if
the Notice of Termination is given in connection with a substantial breach of
the Agreement by the Company or the Bank and such breach is not cured within
such thirty (30) day period.
5. POST-EMPLOYMENT RESTRICTIVE COVENANTS. The Executive's activities
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during his employment and following the termination of his employment for any
reason shall be subject to the Agreement Regarding Post-Employment Restrictive
Covenants attached hereto as Appendix A.
6. EFFECT ON PRIOR AGREEMENTS. This Agreement contains the entire
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understanding between the parties hereto and supersedes any prior employment or
severance compensation agreements between Executive and Westco.
7. MODIFICATION AND WAIVER. This Agreement may not be modified or
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amended except by an instrument in writing signed by the parties hereto. 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 as to any act other than that specifically waived.
8. TAX WITHHOLDING. The Bank may withhold from any amounts payable to
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the Executive under this Agreement to satisfy all applicable Federal, State,
local or other withholding taxes. In the event the Bank fails to withhold such
sums for any reason, it may require the Executive to promptly remit to it
sufficient cash to satisfy all applicable income and employment withholding
taxes.
9. ARBITRATION. Except as expressly set forth elsewhere in this
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Agreement, it is mutually agreed between the parties that arbitration shall be
the sole and exclusive remedy to redress any dispute, claim or controversy
(hereinafter referred to as "grievance") involving the interpretation of this
Agreement or the terms or conditions of this Agreement or the terms, conditions
or termination of the Executive's employment with the Company or Bank. It is
the intention of the parties that the arbitration award shall be final and
binding and that a judgment on the award may be entered in any court of
competent jurisdiction and enforcement may be had according to its terms.
Arbitration shall be initiated by one party filing a written demand on the other
party. Any demand for arbitration by the Executive shall be made within 20 days
after receipt of the Notice of Termination. The arbitrator shall be chosen in
accordance with the
voluntary labor arbitration rules of the American Arbitration Association. The
place of the arbitration shall be the offices of the American Arbitration
Association in Chicago, Illinois. The arbitrator shall not have jurisdiction or
authority to change any of the provisions of this Agreement but shall interpret
or apply any clause or clauses of this Agreement. The arbitrator shall have the
power to compel the attendance of witnesses at the hearing. The parties
stipulate that the provisions hereof, and the decision of the arbitrator with
respect to any grievance, shall be the sole and exclusive remedy for any alleged
breach of the employment relationship in which event the Company or Bank shall
be entitled to seek relief in any court having jurisdiction thereof. The parties
hereby acknowledge that subject to the foregoing exception, neither party has
the right to resort to any federal, state or local court or administrative
agency concerning breaches of this Agreement and that the decision of the
arbitrator shall be a complete defense to any suit, action or proceeding
instituted in any federal, state or local court or before any administration
agency with respect to any grievance which is arbitrable as herein set forth.
The arbitration provisions hereof shall, with respect to any grievance, survive
the termination or expiration of the Executive's employment under this
Agreement.
10. MISCELLANEOUS.
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(a) 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.
(b) 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.
(c) To the extent not preempted by Federal law, this Agreement shall be
governed by and construed in accordance with the laws of the State of Illinois.
(d) Notwithstanding anything herein to the contrary, to the extent that
any compensation or benefits are paid to or received by Executive from the Bank
or any other subsidiary of the Company, such compensation or benefits shall be
deemed to satisfy the Company's obligations hereunder.
11. SUCCESSORS. This Agreement shall be binding upon and inure to the
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benefit of the Company, and its successors and Executive and his successors and
assigns. The Company shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, expressly and
unconditionally to assume and agree to perform the Company's obligations under
this Agreement, in the same manner and to the same extent that the Company would
be required to perform if no such succession or assignment had taken place.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, each of the Company and Bank have caused this Agreement
to be executed by its duly authorized officer and the Executive has signed this
Agreement, effective as of the date first written above.
MAF BANCORP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman and Chief Executive Officer
Executive:
/s/ ▇▇▇▇▇ ▇.▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
Exhibit 10(xiv)
Amendment to Employment Agreement of ▇▇▇▇▇ ▇▇▇▇▇
The undersigned, in consideration of their mutual promises and other good and
valuable consideration, hereby agree to amend the Employment Agreement of ▇▇▇▇▇
▇▇▇▇▇ dated January 1, 1999, (the "Agreement"), as shown below. Such amendment
shall be effective as of the date shown below.
Section 4(g) shall be added as follows:
Notwithstanding Section 4(c) of this Agreement, in the event it shall be
determined that a payment or distribution of the type described in Sections
3(c), (e) and 4(c) 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 payable to Executive under Section 4(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 4(c) of this Agreement.
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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 4(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.
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IN WITNESS WHEREOF, the parties have executed this Amendment effective this
October 26, 1999.
ATTEST: MAF BANCORP, INC.
By: /s/ ▇▇▇▇▇▇▇ Piherra By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Corporate Secretary Chief Executive Officer
EMPLOYEE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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