EXHIBIT NO. 10.40 –
AGREEMENT REGARDING POST-EMPLOYMENT RESTRICTIVE
COVENANTS BETWEEN MAF BANCORP,
INC. AND THOMAS R. PERZ
APPENDIX A TO PERZ EMPLOYMENT
AGREEMENT
AGREEMENT REGARDING
POST-
EMPLOYMENT RESTRICTIVE
COVENANTS
THIS AGREEMENT made effective as of
December 1, 2003, by and between MAF Bancorp, Inc.
(“Purchaser”) and Thomas R. Perz
(“Executive”).
W
I T N
E S S E T H
:
WHEREAS, Purchaser and its
affiliates are engaged in depository, lending and other financial
services businesses (the “Business”);
WHEREAS, Executive has expertise,
experience and capability in the Business;
WHEREAS, Purchaser has invested
significant amounts in the acquisition of all of the stock of St.
Francis Capital Corporation;
WHEREAS, Executive has served as
President and Chief Executive Officer of St. Francis Capital
Corporation and its subsidiaries and will be serving Purchaser and
Mid America Bank, fsb (the “Bank”) in the capacity set
forth on the signature page hereof;
WHEREAS, Purchaser desires to enter
into this Agreement to obtain Executive’s agreements
regarding confidentiality and post-employment restrictive covenants
for Purchaser, the Bank, and/or subsidiaries (Purchaser, the Bank
and/or subsidiaries hereinafter “Purchaser or its
affiliates”) in return for the payments set forth herein;
and
WHEREAS, Executive is willing to
provide such agreements to Purchaser and the Bank.
NOW, THEREFORE, in consideration of
the promises and mutual covenants herein contained, and for other
good and valuable consideration, the receipt and sufficiency of
which consideration is mutually acknowledged by the parties, it is
hereby agreed as follows:
1. Recitals .
The recitals hereinbefore set forth
constitute an integral part of this Agreement, evidencing the
intent of the parties in executing this Agreement, and describing
the circumstances surrounding its execution. Said recitals are by
express reference made a part of the covenants hereof, and this
Agreement shall be construed in light thereof.
2. Confidential Information
.
Executive acknowledges that during
the course of his employment he has learned or will learn or
develop Confidential Information (as that term is defined in this
Section 2). Executive further acknowledges that unauthorized
disclosure or use of such Confidential Information, other than in
discharge of Executive’s duties, will cause Purchaser or its
affiliates irreparable harm.
2
For purposes of this Section,
Confidential Information means trade secrets (such as technical and
non-technical data, a program, method, technique, process) and
other confidential or proprietary information concerning the
products, processes, services, or customers of Purchaser or its
affiliates, including but not limited to: computer programs;
marketing, or organizational research and development; business
plans; revenue forecasts; personnel information, including the
identity of other employees of Purchaser or its affiliates, their
responsibilities, competence, abilities, and compensation; pricing
and financial information; current and prospective customer lists
and information on customers or their employees; information
concerning planned or pending acquisitions or divestitures; and
information concerning purchases of major equipment or property,
which information: (a) has not been made generally available to the
public; and (b) is useful or of value to the current or anticipated
business, or research or development activities of Purchaser or its
affiliates; or (c) has been identified to Executive as confidential
by Purchaser or its affiliates, either orally or in
writing.
Except in the course of his
employment and in the pursuit of the business of Purchaser or its
affiliates, Executive shall not, during the course of his
employment, or following termination of his employment for any
reason, directly or indirectly, disclose, publish, communicate or
use on his behalf or another’s behalf, any Confidential
Information, proprietary information or other data of Purchaser or
its affiliates.
Executive acknowledges that as to
certain aspects of its business, Purchaser and its affiliates
operate and compete throughout the Chicagoland and Milwaukee areas
and that Purchaser or its affiliates will be harmed by unauthorized
disclosure or use of Confidential Information regardless of where
such disclosure or use occurs, and that therefore this
confidentiality agreement is not limited to any single state or
other jurisdiction.
3. Non-Competition .
During the term of his employment
and service on the Board of Directors of the Purchaser and Bank and
for the period ending twenty-four (24) months following the date
the Executive ceases all such service (the “Non-Compete
Period”), the Executive shall not, in the Territory (except
in his capacity as an employee or director of Purchaser or a
Purchaser affiliate), (a) engage or participate in the Business,
(b) enter the employ of, or render any services to, any person or
entity engaged in the Business or competitive with Purchaser or its
affiliates, (c) engage or participate in, be employed by or render
services to any person or entity engaged in the depository, lending
or other activities constituting the Business, or (d) directly or
indirectly become interested in any person or entity referred to in
clauses (b) and (c) above in any capacity, including without
limitation, as an individual, partner, shareholder, lender,
officer, director, principal, agent or trustee; provided, however,
that the Executive may own, directly or indirectly, solely as an
investment, securities of any publicly-traded entity if Executive
is not a controlling person of such entity, or a member of a group
which controls such entity and Executive does not own more than 5%
of any
