EXHIBIT 10.1
MAF BANCORP, INC.
EMPLOYMENT AGREEMENT
This
Amended and Restated Employment Agreement (the
“Agreement”), made as of April 19, 1990, as previously
amended from time to time, is hereby amended and restated effective
as of January 1, 2007 by and between MAF Bancorp, Inc. (the
“Company”), a Delaware corporation with its principal
administrative office at 55th & Holmes Streets, Clarendon
Hills, Illinois, and Allen H. Koranda (“Executive”).
Any reference to “Bank” herein shall mean
Mid America Bank, fsb or any successor thereto.
WHEREAS,
the Company recognizes the responsibility Executive has with the
Company and wishes to protect his position therewith for the period
provided in this Agreement;
WHEREAS,
Executive has been appointed to, and has agreed to serve in the
position of Chief Executive Officer, a position of substantial
responsibility with the Company.
WHEREAS,
the expiration date of this Agreement was previously extended by
action of the Board of Directors of the Company to December 31,
2008;
WHEREAS,
the Board has approved a further extension hereof until December
31, 2009, subject to amending and restating the Employment
Agreement as provided for herein to, among other things,
incorporate prior amendments and reflect appropriate updating, to
clarify the intent of certain provisions, to modify the calculation
of severance benefits and to obtain for the benefit of the Company
certain restrictive covenants from Executive;
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.
During
the period of his employment hereunder, Executive agrees to serve
as Chief Executive Officer of the Company. The Executive shall
render management services to the Company such as are customarily
performed by persons in a similar executive capacity. During said
period, Executive also agrees to serve, if elected, as an officer
of any subsidiary or affiliate of the Company.
2. TERMS
AND DUTIES.
(a) The
term of this Agreement shall be deemed to have commenced as of the
date first above written and shall continue through
December 31, 2009, subject to the extension of such term as
hereinafter provided and subject to other termination as provided
in Sections 4, 5, 6, 7 and 8. The term of this Agreement shall
be extended for an additional year as of December 31, 2007 and each
December 31 thereafter, such that the remaining term is three (3)
years as of such December 31; provided that not later than the
March 31 following such December 31, the Board of Directors of the
Company (the “Board”) has taken action to approve such
extension following an annual review of this Agreement and
Executive’s performance by the Administrative/Compensation
Committee of the Board for purposes of making a
recommendation to the Board
whether to extend this Agreement, and the results thereof shall be
included in the minutes of the Board’s meeting. The
Board’s decision whether or not to extend this Agreement
shall be promptly communicated to the Executive. In the event the
Executive desires not to extend the Agreement for an additional
period, the Executive shall provide the Company with written notice
at least ten (10) days and not more than twenty (20) days prior to
the end of such calendar year. If either the Bank or the Executive
chooses not to extend the Agreement for an additional period, the
Agreement shall cease at the end of its remaining term or, if
earlier, upon Executive’s termination of
employment.
(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 Company and its affiliates; provided, however, that
Executive may hold other offices or positions, including
directorships, in companies or organizations, which do not present
any conflict of interest with the Company or its affiliates, do not
adversely affect the performance of Executive’s duties and in
all cases are consistent with the Company’s Corporate Code of
Ethics; provided, however, Executive’s commitments to and
holding of such other offices or positions shall be subject to the
review and nullification by the Nominating and Corporate Governance
Committee of the Board of Directors of the Company.
(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 15 of the Employment Agreement of
even date herewith, 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 with the
Company and receive the compensation benefits provided hereunder by
the Company. Nothing in this provision shall be interpreted as
restricting the Company’s right to remove Executive for Cause
in accordance with Section 8 of this Agreement.
3.
COMPENSATION.
(a) The
Company shall pay Executive an annual salary of $461,500
(“Base Salary”) which shall be reviewed at least
annually by the Committee. The Base Salary may be increased but may
not be decreased from the Base Salary amount then in effect without
the prior written consent of Executive or unless such decrease is
in proportion to a general reduction in salary affecting all senior
executive officers of the Company.
(b) In
addition to the payment of a Base Salary, Executive will be
entitled to participate in, and be eligible to receive benefits or
grants under, any employee benefit plan or program that is offered
to executive officers of the Company, including, but not limited
to, annual bonus programs, long-term bonus programs, equity
incentive awards, supplemental executive retirement plans and
deferred compensation plans, with such participation, eligibility,
benefits and grants determined on a basis consistent with
Executive’s position described in Section 1.
(c) In
addition to the compensation provided in Sections 3(a) and
3(b), the Company shall provide Executive with such other benefits
as are provided to other full-time employees of the Bank, including
but not limited to, participation in ESOP, profit-sharing and
401(k) plans, medical, dental, disability and life insurance plans,
subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and arrangements as in effect
from time to time. In addition, the Executive shall have the use of
a company automobile and the Company shall pay or reimburse
Executive for all reasonable business travel and related expenses
incurred by Executive.
(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 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, 24 and
25.
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(a)
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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 4 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 Company of Executive’s employment hereunder for any
reason other than when such termination follows a Change in Control
(as defined in Section 5(a) hereof) or when such termination
is a Termination for Cause (as defined in Section 8 hereof);
(ii) Executive’s resignation from the Company’s
employ (in accordance with the procedures outlined in this
Section 4(a)), following any (A) failure to re-appoint
Executive as Chief Executive Officer without the consent of the
Executive, unless Executive is appointed to a position of greater
authority, responsibility and title, (B) material change in
Executive’s function, duties, or responsibilities (including
any series of changes which in the aggregate amount to a material
change), which causes Executive’s position to become one of
lesser responsibility, importance, or scope, or (C) breach of
this Agreement by the Company. Upon the occurrence of any event
described in clause (A), (B) or (C) above, Executive shall,
within 120 days of the occurrence of such event, give notice of
such event to the Company. The Company shall thereafter have 10
business days to cure such material change or breach. If such
material change or breach is not cured within this timeframe,
Executive shall have the right, within 60 days of the end of the
cure period, to terminate his employment under this Agreement.
Failure of Executive to give notice to the Company of the event
described in clause (A), (B) or (C) within the specified timeframe
or failure of Executive to terminate his employment within the
proper timeframe shall constitute a waiver by Executive of such
event. In the event of Executive’s death (i) following the
date the Executive has given notice of an event described in clause
(A), (B) or (C) above within the required 120-day period (unless,
prior to such death, the Company has cured the material
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change or
breach or commenced action to so cure the material change or breach
within the required 10-day period), or (ii) after Executive has
resigned his employment within the 60-day period following the end
of the cure period, an Event of Termination shall be deemed to have
occurred immediately prior to the date of Executive’s
death.
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(b)
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Upon the
occurrence of an Event of Termination, 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 the greater of:
(i) the compensation the Executive would be entitled to receive
during the term of the Agreement remaining as of the date
immediately prior to the Date of Termination (defined below) or
(ii) the Executive’s three (3) preceding years’
compensation, which three-year period shall end on the last day of
the month immediately preceding the Date of Termination. For
purposes of clause (i) of the preceding sentence, compensation
shall include the amount of Base Salary which Executive would be
entitled to receive pursuant to Section 3(a) during the applicable
period (determined prior to any general reduction occurring within
one year prior to the Event of Termination or any reduction which
gave rise to the Event of Termination) plus a target annual cash
bonus amount for each calendar year ending within the applicable
period, which target annual cash bonus amount for each such year
shall be equal to the target annual cash bonus amount for the
calendar year in which the Date of Termination occurs (regardless
of whether the actual annual cash bonus payment for any such year
is less than or more than such target annual cash bonus amount, and
without proration). For purposes of clause (ii) above, compensation
shall include the amount of Base Salary which Executive received
during the applicable period (or was entitled to receive under
Section 3(a) prior to any general reduction occurring within one
year prior to the Event of Termination or any reduction which gave
rise to the Event of Termination) plus a target annual cash bonus
amount for each calendar year commencing within the applicable
period, which target annual cash bonus amount for each such year
shall be equal to the target annual bonus amount established for
the Executive with respect to such year (regardless of whether the
actual annual cash bonus payment for any such year was less than or
more than such target annual cash bonus amounts, and without
proration). Subject to any delay required to comply with Code
Section 409A, such payments shall be made in a lump sum within five
(5) business days of the Date of Termination relating to such
Event of Termination, unless Executive has made a prior election
(in accordance with procedures established by the Committee and in
compliance with Code Section 409A) to have such payments made in
thirty-six (36) monthly installments (without interest)
beginning with the month following the month of Executive’s
termination.
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(c)
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Upon the
occurrence of an Event of Termination, the Company will cause to be
continued medical, dental, disability and life insurance coverage
substantially identical (including coverage amounts, co-pays,
deductible amounts and maximum out-of-pocket amounts) to the
coverage that would have been provided by the Company for the
Executive and his dependents from time to time in accordance with
Section 3(c) if Executive’s employment had continued
hereunder. The Company’s obligation and the Executive’s
entitlement to continued medical and dental coverage shall be
governed by the provisions of Section 7 below. With respect to
disability and life insurance coverage, Executive shall be
obligated to continue to pay, on a monthly basis, the portion of
the cost of such insurance coverage that he would be required to
pay if his employment had continued. Such continuing insurance and
payment arrangements for disability and life insurance coverage
shall continue until the earlier of: (i) the date
Executive
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fails to remit
to the Company the required monthly premium amount for such
insurance coverage within a thirty (30) day grace period of
when such payment is due (or, if later, within thirty (30) days
after Executive is informed of the payment due); (ii) the date
Executive obtains insurance coverage from another employer that is
not less than that provided by the Company; (iii) the date of
Executive’s death; (iv) age 65; or (v) sixty
(60) months from the Date of Termination relating to the Event
of Termination.
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(d)
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In addition to
the other benefits provided by this Section 4, Executive shall
be entitled to a lump-sum payment of his accrued vacation benefits
through the date of Executive’s termination. Executive shall
also be entitled to all other payments or benefits to which he may
be entitled under the terms of any applicable compensation
arrangement or benefit, or fringe benefit plan, program or
grant.
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(a)
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No benefit
shall be payable under this Section 5 unless there shall have
been a Change in Control of the Company, as set forth below, and
benefits under this Section 5 shall in all respects be subject to
the terms and conditions stated in Sections 24 and 25. For
purposes of this Agreement, a “Change in Control” of
the Company shall mean:
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(i)
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an event that
would be required to be reported in response to Item 5.01 of the
current report on Form 8-K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934 (the “Exchange Act”);
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(ii)
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an event that
results in a change in control of the Bank or the 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;
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(iii)
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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 the 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 (A) any securities of the Bank owned by the
Company, or (B) any securities purchased by the employee stock
ownership plan and trust of the Company or a subsidiary;
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(iv)
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at such time
that individuals who constitute the Company’s Board of
Directors on the date hereof (the “Incumbent Board”) or
the Board of Directors of the 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 Bank Incumbent Board, as the case
may be, or whose nomination for election by the stockholders was
approved by the Nominating Committee serving under the Incumbent
Board or the Bank Incumbent Board, shall be,
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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;
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(v)
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consummation of
a reorganization, merger, consolidation, sale of all or
substantially all the assets of the Bank or Company or similar
transaction occurs (each a “Business Combination”) that
results in a change of control. A Business Combination will not be
deemed to result in a change of control if: (A) all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the voting stock immediately
prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of the total voting power represented by
the voting securities entitled to vote generally in the election of
directors of the resulting entity from the Business Combination
(including, without limitation, an entity, which as a result of
such transaction, owns the Bank or Company or all or substantially
all of the Bank’s or Company’s assets either directly
or through one or more subsidiaries) in substantially the same
proportions of such voting power as their ownership of the voting
stock immediately prior to the Business Combination, and
(B) at least a majority of the members of the board of
directors of the resulting entity from the Business Combination
were members of the Incumbent Board or Bank Incumbent Board,
respectively, at the time of the execution of the initial
agreement, or action of the Incumbent Board or Bank Incumbent
Board, providing for such Business Combination;
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(vi)
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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
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(vii)
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a tender offer
is made and completed for 20% or more of the outstanding securities
of the Company.
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(b)
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If any of the
events described in Section 5(a) hereof constituting a Change
in Control has occurred and is followed by Executive’s
voluntary or involuntary termination of employment (including for
reasons of death but excluding a Termination for Cause) upon or
within two (2) years of the date of the Change in Control,
Executive (or, as applicable, his beneficiary, beneficiaries or
estate) shall be entitled to the benefits provided in paragraphs
(c), (d), (e) and (f) of this Section 5.
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(c)
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Upon the
occurrence of a Change in Control followed by the Executive’s
termination of employment as described in Section 5(b), the
Company or its successor shall pay Executive, or in the event of
his 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 Executive’s three (3) preceding
years’ compensation, which three-year period shall end on the
last day of the month immediately preceding the month in which the
Executive’s Date of Termination occurs, or if such amount is
greater, the last day of the month immediately preceding the date
of the
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Change in
Control. For purposes of the preceding sentence, compensation shall
include the amount of Base Salary which Executive received during
the applicable period (or was entitled to receive under Section
3(a) prior to any general reduction occurring within one year prior
to the Event of Termination or any reduction which gave rise to the
Event of Termination) plus a target annual cash bonus amount for
each calendar year commencing within the applicable period, which
target annual cash bonus amount for each such year shall be equal
to the target annual bonus amount established for the Executive
with respect to such year (regardless of whether the actual annual
cash bonus payment for any such year was less than or more than
such target annual cash bonus amounts, and without proration).
Subject to any delay required by Section 409A, such payments shall
be made in a lump sum within five (5) business days of
Executive’s Date of Termination relating to such termination
of employment, unless Executive has made a prior election (in
accordance with procedures established by the Committee) to have
such payments made in thirty-six (36) monthly installments
(without interest) beginning with the month following the month of
Executive’s termination.
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(d)
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Upon the
occurrence of a Change in Control followed by the termination of
the Executive’s employment in accordance with Section 5(b),
the Company will cause to be continued medical, dental, disability
and life insurance coverage substantially identical (including
coverage amounts, co-pays, deductible amounts and maximum
out-of-pocket amounts) to the coverage that would have been
provided by the Company for the Executive and his dependents from
time to time in accordance with Section 3(c) if Executive’s
employment had continued hereunder. The Company’s obligation
and the Executive’s entitlement to continued medical and
dental coverage shall be governed by the provisions of Section 7
below. With respect to disability and life insurance coverage,
Executive shall be obligated to continue to pay, on a monthly
basis, the portion of the cost of such insurance coverage that he
would be required to pay if his employment continued. Such
continuing insurance and payment arrangements for disability and
life insurance coverage shall continue until the earlier of:
(i) the date Executive fails to remit to the Company the
required monthly premium amount for such insurance coverage within
a thirty (30) day grace period of when such payment is due
(or, if later, within thirty (30) days after Executive is informed
of the payment due); (ii) the date Executive obtains insurance
coverage from another employer that is not less than that provided
by the Company; (iii) the date of Executive’s death;
(iv) age 65; or (v) sixty (60) months from the Date
of Termination relating to such termination of
employment.
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(e)
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In addition to
the other benefits provided by this Section 5, Executive shall
be entitled to a lump-sum payment of his accrued vacation benefits
through the date of Executive’s termination.
Executive
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