**Exhibit 10.9**

 

June 28,2005

 

Stephen P. DuBois

6832 107th Avenue

Kenosha, Wisconsin  53142

 

Dear Mr. DuBois:

 

In connection with the anticipated merger (the “Merger”) of EFC Bancorp, Inc.(the “Company”) with and into MAF Bancorp, Inc. (the “Purchaser”) ascontemplated by the Agreement and Plan of Reorganization by and between thePurchaser and the Company (the “Merger Agreement”), the Company, EFS Bank (the “CompanyBank”) and you hereby enter into this agreement (this “Agreement”).  Capitalized terms used but not otherwisedefined in this Agreement shall have the meaning set forth in the MergerAgreement.

 

# 1.                                     *Options*.  Prior to December 31,2005, you may exercise any and all vested options for the purchase of Companycommon stock (the “Options”) that you hold as of the date hereof and, withrespect to any such Options that are “incentive stock options” within themeaning of Section 422 of the Internal Revenue Code of 1986, as amended(the “Code”), subject to any restrictions on sale pursuant to applicable law,sell the shares of the Company’s common stock underlying such Options, suchthat all income from such exercise shall be included in your gross income for2005.  For the avoidance of doubt, andnotwithstanding anything herein to the contrary, any income that you derivefrom the exercises of the Options (and sale of the underlying shares) as setforth in the preceding sentence shall not be taken into account in computingany benefits under any plan, program or arrangement of Mid America Bank (the “PurchaserBank”), the Purchaser, the Company Bank, the Company or their affiliates.

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# 2.                                     *2005 Supplemental ExecutiveRetirement Agreement Payment*.  Prior to December 23, 2005, the CompanyBank shall pay to you an amount equal to the amount set forth on Exhibit Aas the “2005 Supplemental Executive Retirement Agreement Payment.”  For the avoidance of doubt, andnotwithstanding anything herein to the contrary, the 2005 SupplementalExecutive Retirement Agreement Payment shall not be taken into account incomputing any benefits under any plan, program or arrangement of the PurchaserBank, the Purchaser, the Company Bank, the Company or their affiliates.

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# 3.                                     *Executive Split Dollar LifeInsurance.*

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# Supplemental Life/Split Dollar Plan. ** **Effective as of the date hereof, theCompany Bank’s Supplemental Life/Split Dollar Plan and each Split Dollar PolicyEndorsement thereunder (collectively, “SL/SD Plan”) is amended hereby toprovide that (a) the aggregate amount of death benefit proceeds which maybe paid to your beneficiaries shall not exceed the lesser of: (i) theThree Times Base Salary Amount (defined to mean your current base salary as ofthe date of this letter, multiplied by three (3), (ii) the sum of amountsshown as the maximum dollar amount of each of the endorsements to which you area party (the “Maximum Dollar

 

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# Amount”),or (iii) the amount by which the aggregate death benefits payable underall Policies maintained under the Plan for the purpose of insuring your lifeexceeds the aggregate cash value of such Policies immediately prior to yourdeath,  and (b) the Plan may beamended or terminated following the Effective Time, provided Purchasermaintains, or causes Purchaser Bank to maintain, in full force and effect alife insurance policy or policies (which need not be one or more Policiesestablished under the SL/SD Plan) insuring your life which provide an aggregatedeath benefit payable to your beneficiary or beneficiaries equal to the lesserof the Three Times Base Salary Amount of the Participant or the Maximum DollarAmount.

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# 4.                                     *Agreement to Remain EmployedThrough Effective Time*.    In consideration of the benefits conferredupon you, the Company and the Company Bank pursuant to this Agreement, youhereby agree not to terminate your employment with the Company Bank or any ofits subsidiaries prior to the Effective Time, and, prior to the Effective Time,the Company Bank agrees not to terminate your employment with the Company Bankor its subsidiaries without the prior written consent of the Purchaser.  You hereby represent and warrant that, butfor the benefit plans and agreements of or with the Company or the Company Bankthat are specifically referred to herein, any tax-qualified pension plans orinsured welfare benefit plans of the Company Bank and your rights in respect ofoutstanding stock options and restricted stock in respect of Company commonstock under the Company’s stock compensation plans, you are not entitled to oreligible for any other payments or benefits under any plans, agreements orarrangements of or with the Company or the Company Bank and hereby waive anyrights with respect thereto.

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# 5.                                     *Withholding and Reduction.*  TheCompany or Company Bank will withhold and deposit all federal, state and localincome and employment taxes that are owed with respect to all amounts paid orbenefits provided to or for you by the Company or any affiliate pursuant tothis Agreement.  You, the Company and theCompany Bank agree that none of the payments and benefits payable or providedto you or for your benefit under this Agreement or otherwise in connection withthe Merger are expected to constitute an “excess parachute payment” within themeaning of Section 280G of the Code. However, notwithstanding anything to the contrary contained in thisAgreement or the Prior Agreement, in no event shall the aggregate payments orbenefits to be made or afforded to you under this Agreement or otherwise (the “Payments”)constitute an “excess parachute payment” under Section 280G of the Codeand in order to avoid such a result the Payments will be reduced, if necessary,to an amount such that when aggregated with all other payments, benefits ordistributions in the nature of compensation to or for your benefit, whetherpaid, payable or provided pursuant to this Agreement or otherwise (the “AggregatePayments”), the value of such Aggregate Payments shall be equal to three (3) timesyour “base amount,” as determined in accordance with Section 280G of theCode, less $5,000.00.  You hereby agreeto report any amounts paid or benefits provided under this Agreement forpurposes of Federal, state and local income, employment and excise taxes in amanner consistent with the manner in which the Company or Company Bank reportsany such amounts or benefits for purposes of Federal, state and local income,employment and excise taxes.

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# 6.                                     *Successors*.  ThisAgreement is personal to you and without the prior written consent of theCompany shall not be assignable by you otherwise than by will or the laws ofdescent and distribution.  This Agreementshall inure to the benefit of and be enforceable by your legalrepresentatives.  This Agreement shallinure to the benefit of and be binding upon the

 

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# Company,the Company Bank and their successors and assigns.  From and after the Effective Date, the “Company”shall mean the “Purchaser,” and “Company Bank” shall mean “Purchaser Bank,”except to the extent the context indicates otherwise.

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# 7.                                     *Waiver*.  Failureof the Company to demand strict compliance with any of the terms, covenants orconditions of this Agreement shall not be deemed a waiver of such term,covenant or condition, nor shall any waiver or relinquishment of any such term,covenant or condition on any occasion or multiple occasions be deemed a waiveror relinquishment of such term, covenant or condition.

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# 8.                                     *Governing Law and Jurisdiction*. The Agreement is governed by and construed underthe laws of the State of Illinois, without regard to conflict of lawsrules.  You, the Company and the CompanyBank (a) hereby consent to submit to the exclusive personal jurisdictionof any Federal court located in the State of Illinois or any court of the Stateof Illinois in the event any dispute arises out of this Agreement or any of thetransactions contemplated by this Agreement, and (b) hereby waive anyright to challenge jurisdiction or venue in such courts with regard to anysuit, action, or proceeding under or in connection with the Agreement.  Each party to this Agreement also herebywaives any right to trial by jury in connection with any suit, action, orproceeding under or in connection with this Agreement.

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# 9.                                     *Entire and Final Agreement*.  ThisAgreement shall supersede any and all prior oral or written representations,understandings and agreements of the parties with respect to their employmentrelationship (including, but not limited to all correspondence, memoranda andterm sheets and the Prior Agreement), and it contains the entire agreement ofthe parties with respect to those matters. No agreements or representations, oral or otherwise, express or implied,with respect to the subject matter hereof have been made by either party whichare not set forth expressly in this Agreement. Once signed by the parties hereto, no provision of this Agreement may bemodified or amended unless agreed to in writing, signed by you and a dulyauthorized officer of the Company and the Company Bank and subject to the priorwritten consent of the Purchaser.

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# 10.                               *Assignment*.  Neitherthis Agreement nor any of the rights, obligations or interests arisinghereunder may be assigned by you. Neither this Agreement nor any of the rights, obligations or interestsarising hereunder may be assigned by the Company or the Company Bank withoutyour prior written consent, to a person or entity other than an affiliate orparent entity of the Company or the Company Bank or its successors or assigns; *provided*, *however*,that, in the event of the merger, consolidation, transfer, or sale of all orsubstantially all of the assets of the Company or the Company Bank with or toany other individual or entity, this Agreement shall, subject to the provisionshereof, be binding upon and inure to the benefit of such successor and suchsuccessor shall discharge and perform all the promises, covenants, duties, andobligations of the Company and the Company Bank hereunder.

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# 11.                               *Section Headings*.  The section headingscontained in this Agreement are inserted for purposes of convenience only andshall not affect the meaning or interpretation of this Agreement.

 

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# 12.                               *Notices*.  Allnotices required by this Agreement shall be sent in writing and delivered byone party to the other by overnight express mail to the following persons andaddresses:

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| If to the Company and Company Bank: | 1695 Larkin Avenue    |
|-------------------------------------|-----------------------|
|                                | Elgin, Illinois 60123 |

 

If to you:                                                                                               Atthe most recent address on file at the Company.

 

# 13.                               *Execution in Counterparts*.  ThisAgreement may be executed by the parties hereto in counterparts, and each ofwhich shall be considered an original for all purposes.

 

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If the foregoing is satisfactory, please so indicateby signing and returning to the Company and the enclosed copy of this letterwhereupon this will constitute our agreement on the subject.

 

 
|                            | COMPANY                        |
|---------------------------------|--------------------------------|
|                            |                           |
|                            |                           |
|                            | By:                            | /s/ Barrett  J. O’Connor |   |
|                            | Date:  June 28, 2005 |
|                            |                           |
|                            |                           |
|                            | COMPANY BANK                   |
|                            |                           |
|                            |                           |
|                            | By:                            | /s/ Barrett  J. O’Connor |   |
|                            | Date:  June 28, 2005 |
|                            |                           |
|                            |                           |
| ACCEPTED AND AGREED TO:         |                           |
|                            |                           |
|                            |                           |
| /s/ Stephen P. DuBois           |                           |   |
| Stephen P. DuBois               |                           |
| Date:   June 28, 2005 |                           |
|                                 |                                |  |  |  |

 

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**EXHIBIT A**

 
| 2005  Supplemental Executive Retirement Agreement Payment (Section 2): |   | $ | 236,094 |   |
|-----------------------------------------------------------------------------|--------|---|---------|--------|

 

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