EXHIBIT 10.10
MAF BANCORP, INC.
FORM OF INCENTIVE STOCK OPTION AGREEMENT
This Stock Option Agreement (this "Agreement") is made as of the date set
forth on the signature page hereof by and between MAF Bancorp, Inc., a Delaware
corporation (the "Company"), and the undersigned Optionee ("Optionee"). Except
as otherwise indicated or defined in paragraph 1 hereof, all words with initial
capitals shall have the same meaning as ascribed to them in the Plan. Optionee
acknowledges receipt of a copy of the Plan.
WHEREAS, the Company desires to grant to Optionee an option ("Option") to
buy shares of the Company's Common Stock, pursuant to the MAF Bancorp, Inc.
Incentive Compensation Plan (the "Plan") and this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. For the purposes of this Agreement:
(a) "Affiliate" means the Company and any other direct or indirect
subsidiary of the Company.
(b) "Change in Control" shall mean any of the following events:
(i) a change in control which would be required to be reported
in response to Item 1 of the current report on Form 8-K, as in effect on
the date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange
Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇"); or
(ii) a change in control of the Company or the Bank within the
meaning of the Home Owners Loan Act of 1933, as amended, and the Rules and
Regulations promulgated by the Office of Thrift Supervision (or its
predecessor agency), as in effect on the date hereof, including Section 574
of such regulations; or
(iii) without limitation, at such time as any "person" (as the
term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities, or makes an offer to purchase and
completes the purchase of securities, of the Bank or Company representing
20% or more of the Bank's or Company's outstanding securities ordinarily
having the right to vote at the election of directors except for (i) any
securities purchased by the employee stock ownership plan and trust of the
Company or a subsidiary or (ii) any securities of the Bank owned by the
Company; or
(iv) individuals who constitute either the Company's Board of
Directors on the date hereof (the "Incumbent Board"), or the Board of
Directors of Mid America Bank ("Bank") on the date hereof (the "Bank
Incumbent Board"), cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the
date hereof whose election was approved by a vote of at least
three-quarters of the directors comprising the Incumbent Board or the Bank
Incumbent Board, as the case may be, or whose nomination for election by
the stockholders was approved by the Nominating Committee appointed by the
Incumbent Board or the Bank Incumbent Board, shall be, for purposes of this
clause (iv), considered as though such individual was a member of the
Incumbent Board or the Bank Incumbent Board, as the case may be; or
(v) a plan of reorganization, merger, consolidation, sale of
all or substantially all the assets of the Bank or Company or similar
transaction occurs; or
(vi) a proxy statement shall be distributed soliciting proxies
from stockholders of the Company, by someone other than the current
management of the Company, seeking stockholder approval of a plan of
reorganization, merger or consolidation of the Company or Bank or similar
transaction with one or more corporations as a result of which the
outstanding shares of the class of securities then subject to such plan or
transaction are exchanged for or converted into cash or property or
securities not issued by the Company and such proxy statement proposal is
approved by the shareholders of the Company; or
(vii) a tender offer is made and completed for 20% or more of
the outstanding securities of the Company.
However, notwithstanding anything contained in this section to the
contrary, a Change in Control shall not be deemed to have occurred as a result
of an event described in (i), (ii), (iii), (v) or (vii) above which resulted
from an acquisition or proposed acquisition of stock of the Company by a person,
as defined in the OTS' Acquisition of Control Regulations (12 C.F.R. ss. 574)
(the "Control Regulations"), who was an executive officer of the Company on the
date of the adoption of the Plan and who has continued to serve as an executive
officer of the Company as of the date of the event described in (i), (ii),
(iii), (v) or (vii) above (an "incumbent officer"). In the event a group of
individuals acting in concert satisfies the definition of "person" under the
Control Regulations, the requirements of the preceding sentence shall be
satisfied and thus a change in control shall not be deemed to have occurred if
at least one individual in the group is an incumbent officer.
(c) "Resignation" means Optionee's relinquishment of employment with the
Company and all Affiliates.
(d) "Retirement" means any Resignation or Termination of employment with
the Company and all Affiliates, other than due to death or Termination for
Cause, (i) on or after the Optionee's normal retirement date or early retirement
date as from time to time set forth under any tax-qualified plan of the Company
or any Affiliate which covers the Optionee.
(e) "Termination" means a termination of the employment of Optionee by
the Company and all of its Affiliates for any reason, other than Resignation or
a Termination For Cause, including, but not limited to, permanent disability (as
determined by the Committee in accordance with the Code after receipt of medical
advice) or death.
(f) "Termination Date" means the date on which a Resignation,
Termination or Termination For Cause occurs.
(g) "Termination For Cause" means a termination of the employment of
Optionee by the Company or any Affiliate due to:
(i) The commission of an unlawful or criminal act by Optionee
resulting in material injury to the business or property of the Company or
Affiliates or of an act generally considered to involve moral turpitude,
all as reasonably determined by the Committee;
(ii) The commission of an intentional act by Optionee in the
performance of Optionee's duties as an employee of the Company or any
Affiliate amounting to gross negligence or misconduct or resulting in
material injury to the business or property of the Company or Affiliates,
all as reasonably determined by the Committee;
(iii) Gross misconduct in, or the continued and willful refusal
by the Optionee after written notice by the Company to make himself
available for, the performance of the Optionee's duties for the Company or
a subsidiary; or
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(iv) Suspension due to the direction of any authorized bank
regulatory agency that the Optionee be relieved of his or her duties and
responsibilities to the Company or a subsidiary.
2. Grant and Designation of Option. Upon the execution and delivery of this
Agreement and the related Stock Option Certificate, in each case as of the date
set forth on the signature page, and subject to the Plan (the terms and
provisions of which are incorporated herein and expressly made a part hereof),
the Company hereby grants to Optionee the Option to purchase the aggregate
number of shares of Common Stock set forth on the Stock Option Certificate at
the price per share ("Option Price") set forth on such Certificate, subject to
any adjustment as provided in the Plan. The Option granted hereunder is intended
to be an "incentive stock option" within the meaning of Section 422 of the Code
and shall be subject to the terms and conditions set forth in paragraph 17
below.
3. Term of Option. Subject to earlier termination, acceleration or
cancellation of the Option as provided herein, the term of the Option shall be
for a period ten (10) years from the date hereof. Subject to the provisions of
this Agreement, the Option shall be exercisable at such times and as to such
number of shares as determined on the schedule set forth on the Stock Option
Certificate. Upon and after a Change in Control, Optionee shall be entitled to
exercise the Option in whole or in part with respect to all of the shares
covered thereby.
4. Method of Exercise.
(a) Subject to the terms and conditions of this Agreement, the Option
may be exercised upon delivery of written notice to the Company (the "Exercise
Notice") at its offices at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (or
such other offices of the Company which are hereinafter designated by the
Company) to the attention of the Secretary of the Company. The Exercise Notice
(i) shall state (A) the election to exercise the Option and (B) the total number
of full shares in respect to which it is being exercised, and (ii) shall be
signed by the person or persons exercising the Option.
(b) The Exercise Notice shall be accompanied by the Stock Option
Certificate. Optionee shall pay the total amount due resulting from such
exercise in any of the following forms: (i) in cash or its equivalent for the
full amount of the purchase price of such shares; (ii) by delivery of
previously-acquired shares of MAF Bancorp (that have been owned by the Optionee
for at least six months prior to the date of exercise, unless otherwise
permitted by the Committee) having an aggregate Fair Market Value at the time of
exercise equal to the total payment due from Optionee; (iii) by any other means
which the Committee determines to be consistent with the Plan's purpose and in
accordance with applicable law; or (iv) by a combination of the methods
described in (i), (ii) and (iii) above. The Company shall have the power and the
right to deduct or withhold, or require an Optionee to pay to the Company the
amount, in cash, of any minimum federal, state, or local income, Social Security
and Medicare taxes required by law or regulation to be withheld as a result of
the exercise, unless Optionee delivers Previously-Acquired Shares or elects to
have the Company withhold from the shares purchased, shares having a Fair Market
Value equal to such required tax withholding amount. The amount of any tax
withholding, whether paid in cash or through the withholding of shares, may not
be in excess of the minimum amount of tax required to be withheld. Upon receipt
of the foregoing, the Company shall, as soon as practicable, issue, or cause to
be issued, the shares of Common Stock as to which the Option has been duly
exercised and shall return the Stock Option Certificate, duly endorsed to
reflect such exercise, to Optionee.
5. Restriction on Exercise. This Option may not be exercised if the
issuance of such shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law or regulation. As a condition to the
exercise of this Option, the Company may require Optionee to make any
representation and warranty to the Company as may be reasonably determined by
the Company as necessary to ensure compliance with any applicable law or
regulation.
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6. Effect of Resignation or Termination of Employment.
(a) The Option, to the extent not theretofore exercised, shall
terminate on Optionee's Termination Date, except that:
(i) in the event a Termination Date occurs due to Optionee's
Resignation or Termination (other than in circumstances described in
paragraphs (ii) or (iii) below), Optionee shall have the right to exercise
the Option during the 90-day period following such Resignation or
Termination but only to the extent such Option was exercisable on
Optionee's Termination Date; provided, however, that in no event may the
Option be exercised after the expiration of the term of the Option as
described in paragraph 3;
(ii) in the event a Termination Date occurs under circumstances
that constitute Optionee's Retirement, or in the event of a Termination
Date after a Change in Control, Optionee may during the three-year period
following such Termination Date exercise the Option, whether or not all or
part of the Option was exercisable on Optionee's Termination Date,
provided, however, that in no event may the Option be exercised after the
expiration of the term of the Option as described in paragraph 3;
(iii) in the event a Termination Date occurs due to Optionee's
Termination due to death or Termination or Resignation due to permanent
disability, Optionee or, in the event of death, Optionee's representative,
may during the three-year period following such Termination or Resignation
exercise the Option, whether or not all or part of the Option was
exercisable on Optionee's Termination Date, provided, however, that in no
event may the Option be exercised after the expiration of the term of the
Option as described in paragraph 3; and
(iv) in the event of Optionee's death during the 90-day or
three-year period described in paragraphs (i), (ii) and (iii) above,
Optionee's personal representative may, during the remainder of the 90-day
or three-year period, as applicable, exercise the Option to the extent the
Option was exercisable at the time of Optionee's death; provided, however,
that in no event shall any Option be exercised after the expiration of the
term of the Option as described in paragraph 3.
(b) In the event of a Termination For Cause, any unexercised portion of
the Option, whether vested or not vested, shall immediately terminate.
7. Nontransferability of Option. The Option granted pursuant to this
Agreement may not be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, otherwise than by will or by the laws of descent and
distribution. Further, the Option granted to the Optionee pursuant to this
Agreement shall be exercisable during his or her lifetime only by such Optionee.
8. Compliance with Certain Laws and Regulations. If the Committee shall
determine, in its discretion, that the listing, registration or qualification of
the shares subject to the Option upon any securities exchange or under any law
or regulation, or that the consent or approval of any governmental regulatory
body is necessary or desirable in connection with the granting of the Option or
the acquisition of shares thereunder, Optionee shall supply the Committee or
Company, as the case may be, with such certificates, representations and
information as the Committee or Company, as the case may be, may request and
shall otherwise cooperate with the Company in obtaining any such listing,
registration, qualification, consent or approval.
9. Notices. Any notice provided for in this Agreement must be in writing
and must be either personally delivered, delivered by overnight courier, or
mailed by first class mail, to Optionee at the address set forth on the records
of the Company, to the Company at the address set forth or established pursuant
to paragraph 4, or such other address or to the attention of such other person
as the recipient party shall have specified by prior written notice to the
sending party. Any notice under this Agreement will be deemed to have been given
when received.
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10. Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
11. Complete Agreement. This Agreement and those documents expressly
referred to herein embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
12. Counterparts. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
13. Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of and be enforceable by Optionee, the Company and their respective
permitted successors and assigns (including personal representatives, heirs and
legatees), and is intended to bind all successors and assigns of the respective
parties, except that Optionee may not assign any of Optionee's rights or
obligations under this Agreement except to the extent and in the manner
expressly permitted hereby.
14. Remedies. Each of the parties to this Agreement will be entitled to
enforce its rights under this Agreement specifically, to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in its favor. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its sole discretion apply
to any court of law or equity of competent jurisdiction for specific performance
and/or injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement.
15. Waiver or Modification. Any waiver or modification of any of the
provisions of this Agreement shall not be valid unless made in writing and
signed by the parties hereto. Waiver by either party of any breach of this
Agreement shall not operate as a waiver of any subsequent breach.
16. Rights of Employment. In no event shall the granting of this Option or
Optionee's acceptance hereof give or be deemed to give Optionee any right to be
retained in the employ of the Company.
17. Additional Terms Applicable to Incentive Stock Options. The following
terms and conditions shall apply to this Option, which has been designated as an
incentive stock option ("ISO") under Section 422 of the Code:
(a) This Option shall cease to qualify for tax treatment as an ISO (and
shall thereafter be treated as a non-qualified stock option for tax purposes) if
(and to the extent) this Option is exercised by Optionee (i) more than three
months after Optionee's Termination Date for any reason other than permanent
disability, or (ii) more than twelve months after the Termination Date due to
permanent disability.
(b) This Option shall cease to qualify for tax treatment as an ISO (and
shall thereafter be treated as a non-qualified stock option for tax purposes) if
(and to the extent) this Option is (i) exercised by Optionee's estate, or by a
person who by bequest or inheritance, or by reason of the Optionee's death,
acquired the right to exercise this Option, and (ii) at the time of Optionee's
death, (A) more than three months have past since Optionee's Termination Date,
other than as a result of permanent disability, or (B) more than twelve months
have past since Optionee's Termination Date, if termination resulted from
permanent disability.
(c) In the event an installment or installments of shares of Common
Stock which first become exercisable in whole or in part under this Option and
any other ISO held by Optionee during the same calendar year (either pursuant to
the schedule set forth on the Stock Option Certificate or
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due to acceleration) have an aggregate exercise price in excess of $100,000,
then this Option shall be deemed to be a non-qualified stock option with respect
to the excess shares of Common Stock. In such event, the determination of the
non-qualified stock option status attributable to the excess shares shall be
made by assigning the first $100,000 of aggregate exercise price on the basis of
the order in which the ISOs were granted.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the ___ day of _______________, 200__.
MAF BANCORP, INC.
By: _______________________________
Its: ______________________________
OPTIONEE
___________________________________
Printed Name:______________________
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CERTIFICATE NUMBER NUMBER OF SHARES
[GRANT NO.] [OPTIONS GRANTED]
MAF BANCORP, INC.
STOCK OPTION CERTIFICATE
THIS CERTIFIES THAT _______________ has been awarded an INCENTIVE STOCK
OPTION to purchase X,XXX shares of Common Stock, $.01 par value, of MAF BANCORP,
INC. (the "Company") at a price per share of $XX.XX (which is the average of the
high and low trading price of the Company's Common Stock on the date hereof and
which shall for all purposes constitute the "Fair Market Value"), subject to the
terms and conditions of this Certificate, the related Stock Option Agreement and
the MAF Bancorp, Inc. Incentive Compensation Plan ("Incentive Compensation
Plan").
Subject to earlier termination as provided in the Stock Option Agreement or
Incentive Compensation Plan, this OPTION shall expire ten (10) years from the
date of this Certificate. Except as may be otherwise provided in the Stock
Option Agreement or Incentive Compensation Plan, this OPTION shall be
exercisable as to all or a portion of the number of shares set forth above as
follows:
ON AND AFTER THE FOLLOWING
DATES, BUT PRIOR TO EXPIRATION CUMULATIVE SHARES VESTED
IN WITNESS WHEREOF, MAF BANCORP, INC. has caused this Stock Option
Certificate to be signed by its duly authorized officer this ____ day of
_____________, 200__.
By: ____________________________________
Its: ___________________________________
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