EXHIBIT 10.1
EMPLOYMENT AGREEMENT
FOR
DEARBORN SAVINGS ASSOCIATION, F.A.
This Agreement is made effective as of the ____ day of _____________,
2004 by and between Dearborn Savings Association, F.A. (the "Association"), a
federally chartered stock savings association, with its principal administrative
office at 000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000-0000, and
______________ (the "Executive"). Any reference to "Company" shall mean DSA
Financial Corporation, or any successor thereto.
WHEREAS, the Executive has been employed by the Association since ____
and is currently employed as the ______________ of the Association; and
WHEREAS, the Association recognizes the substantial contribution the
Executive has made to the Association and wishes to protect his position
therewith for the period provided in this Agreement; and
WHEREAS, the Association desires to assure itself of the continued
services of Executive pursuant to the terms of this Agreement.
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 ____________ of the Association. During said period, Executive also agrees to
serve, if elected, as an officer and director of any subsidiary or affiliate of
the Association. Failure to reelect Executive as ____________________ without
the consent of the Executive during the term of this Agreement shall constitute
a breach of this Agreement.
2. TERMS AND DUTIES
(a) The period of Executive's employment under this Agreement shall begin
as of the date first above written and shall continue for thirty-six (36) full
calendar months thereafter, provided, however, that on each day after the date
of this Agreement, the Agreement shall automatically renew so that the remaining
term shall be thirty-six (36) full calendar months, unless written notice of
non-renewal ("Non-Renewal Notice") is provided at least thirty (30) days, but
not more than sixty (60) days, in advance to Executive.
(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 faithfully perform his duties hereunder
including activities and services related to the organization, operation and
management of the Association.
3. COMPENSATION AND REIMBURSEMENT
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Section 2(b). The
Association shall pay Executive as compensation a salary of not less than
$_____________ per year ("Base Salary"). Such Base Salary shall be payable
bi-weekly. During the period of this Agreement, Executive's Base Salary shall be
reviewed at least annually; the first such review will be made no later than
_____________[date] of each year during the term of this Agreement and shall be
effective from the first day of said month through the end of the calendar year.
Such review shall be conducted by a Committee designated by the Board, and the
Board may increase, but not decrease, Executive's Base Salary (any increase in
Base Salary shall become the "Base Salary" for purposes of this Agreement). In
addition to the Base Salary provided in this Section 3(a), the Association shall
provide Executive at no cost to Executive with all such other benefits as are
provided uniformly to permanent full-time employees of the Association.
(b) The Association will provide Executive with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from immediately prior
to the beginning of the term of this Agreement, and the Association will not,
without Executive's prior written consent, make any changes in such plans,
arrangements or perquisites which would adversely affect Executive's rights or
benefits thereunder. Without limiting the generality of the foregoing provisions
of this Section 3(b), Executive will be entitled to participate in or receive
benefits under any employee benefit plans including but not limited to,
retirement plans, supplemental retirement plans, pension plans, profit-sharing
plans, health-and-accident plans, medical coverage or any other employee benefit
plan or arrangement made available by the Association in the future to its
senior executives and key management employees, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements. Executive will be entitled to incentive compensation and
bonuses as provided in any plan of the Association in which Executive is
eligible to participate (and he shall be entitled to a pro rata distribution
under any incentive compensation or bonus plan as to any year in which a
termination of employment occurs, other than termination for Cause). Nothing
paid to the Executive under any such plan or arrangement will be deemed to be in
lieu of other compensation to which the Executive is entitled under this
Agreement.
(c) In addition to the Base Salary provided for by Section 3(a) of this
Section 3, the Association shall pay or reimburse Executive for all reasonable
travel and other reasonable expenses incurred by Executive performing his
obligations under this Agreement and may provide such additional compensation in
such form and such amounts as the Board may from time to time determine.
4. OUTSIDE ACTIVITIES
The Executive may serve as a member of the board of directors of
business, community and charitable organizations subject to the approval of the
Board, provided that in each case such service shall not materially interfere
with the performance of his duties under this Agreement or present any conflict
of interest. Such service to and participation in outside organizations shall
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be presumed for these purposes to be for the benefit of the Association, and the
Association shall reimburse the Executive his reasonable expenses associated
therewith.
5. WORKING FACILITIES AND EXPENSES
The Executive's principal place of employment shall be at the
Association's principal executive offices. The Association shall provide the
Executive, at his principal place of employment, with a private office,
stenographic services and other support services and facilities suitable to his
position with the Association and necessary or appropriate in connection with
the performance of his duties under this Agreement. The Association shall
provide the Executive with an automobile suitable to the position of
______________ of the Association, and such automobile may be used by the
Executive in carrying out his duties under this Agreement and for his personal
use such as commuting between his residence and his principal place of
employment. The Association shall reimburse the executive for the cost of
maintenance, use and servicing of such automobile. The Association shall
reimburse the Executive for his ordinary and necessary business expenses
incurred in connection with the performance of his duties under this Agreement,
including, without limitation, fees for memberships in such clubs and
organizations that Executive and the Board mutually agree are necessary and
appropriate to further the business of the Association, and travel and
reasonable entertainment expenses. Reimbursement of such expenses shall be made
upon presentation to the Association of an itemized account of the expenses in
such form as the Association may reasonably require.
6. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
The provisions of this Section shall in all respects be subject to the
terms and conditions stated in Sections 9 and 17.
(a) The provisions of this Section shall apply upon the occurrence of an
Event of Termination (as herein defined) during the Executive's term of
employment under this Agreement. 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 Association or the Company of Executive's
full-time employment hereunder for any reason other than (A) Disability or
Retirement, as defined in Section 7 below, or (B) Termination for Cause as
defined in Section 8 hereof; or
(ii) Executive's resignation from the Association's employ, upon any
(A) failure to elect or reelect or to appoint or reappoint
Executive as ______________,
(B) material change in Executive's function, duties, or
responsibilities, which change would cause Executive's position to
become one of lesser responsibility, importance, or scope from the
position and attributes thereof described in Section 1, above,
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(C) liquidation or dissolution of the Association or Company other
than liquidations or dissolutions that are caused by
reorganizations that do not affect the status of Executive, or
(D) breach of this Agreement by the Association.
Upon the occurrence of any event described in clauses (ii) (A), (B), (C) or (D),
above, Executive shall have the right to elect to terminate his employment under
this Agreement by resignation upon sixty (60) days prior written notice given
within a reasonable period of time not to exceed four calendar months after the
initial event giving rise to said right to elect. Notwithstanding the preceding
sentence, in the event of a continuing breach of this Agreement by the
Association, the Executive, after giving due notice within the prescribed time
frame of an initial event specified above, shall not waive any of his rights
solely under this Agreement and this Section by virtue of the fact that
Executive has submitted his resignation but has remained in the employment of
the Association and is engaged in good faith discussions to resolve any
occurrence of an event described in clauses (A), (B), (C) or (D) above.
(iii) Executive's involuntary termination by the Association or
voluntary resignation from the Association's employ on the effective date of, or
at any time following, a Change in Control during the term of this Agreement.
For these purposes, a Change in Control of the Association or the Company shall
mean a change in control of a nature that: (i) would be required to be reported
in response to Item 1(a) 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
0000 (xxx "Xxxxxxxx Xxx"); or (ii) results in a Change in Control of the
Association or the Company within the meaning of the Home Owners' Loan Act, as
amended, and applicable rules and regulations promulgated thereunder
(collectively, the "HOLA") as in effect at the time of the Change in Control; or
(iii) without limitation such a Change in Control shall be deemed to have
occurred at such time as (a) 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 of
the Company representing 25% or more of the combined voting power of Company's
outstanding securities, except for any securities purchased by the Association's
employee stock ownership plan or trust; or (b) individuals who constitute the
Board on the date hereof (the "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
whose nomination for election by the Company's stockholders was approved by the
same Nominating Committee serving under an Incumbent Board, shall be, for
purposes of this clause (b), considered as though he were a member of the
Incumbent Board; or (c) a plan of reorganization, merger, consolidation, sale of
all or substantially all the assets of the Association or the Company or similar
transaction in which the Association or Company is not the surviving institution
occurs; or (d) a proxy statement 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 similar transaction with one or more corporations as a result of
which the outstanding shares of the class of securities then subject to the plan
are to be exchanged for or converted into cash or property or securities not
issued by the Company; or (e) a tender offer is made for 25% or more of the
voting securities of the Company and the shareholders owning beneficially or of
record
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25% or more of the outstanding securities of the Company have tendered or
offered to sell their shares pursuant to such tender offer and such tendered
shares have been accepted by the tender offeror.
(b) Upon the occurrence of an Event of Termination, as defined in Section
6(a)(i), (ii) or (iii), on the Date of Termination, the Association 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 three (3) times the sum of (i) Base Salary and
(ii) the highest rate of bonus awarded to the Executive during the prior three
years. At the election of the Executive, which election is to be made on an
annual basis during the month of January, and which election is irrevocable for
the year in which made and upon the occurrence of an Event of Termination, any
payments shall be made in a lump sum, or paid bi-weekly during the remaining
term of this Agreement following the Executive's termination. In the event that
no election is made, payment to the Executive will be made on a bi-weekly basis
during the remaining term of this Agreement. Such payments shall not be reduced
in the event the Executive obtains other employment following termination of
employment.
(c) Upon the occurrence of an Event of Termination, the Association will
cause to be continued life, medical, dental and disability coverage
substantially identical to the coverage maintained by the Association for
Executive prior to his termination. Such coverage shall continue for thirty-six
(36) months from the Date of Termination.
(d) Upon the occurrence of an Event of Termination, the Executive will
immediately vest in any outstanding unvested stock options or shares of
restricted stock of the Company that have been awarded to him.
(e) Notwithstanding the preceding paragraphs of this Section, in the
event that:
(i) the aggregate payments or benefits to be made or afforded to
Executive under said paragraphs (the "Termination Benefits") would be deemed to
include an "excess parachute payment" under Section 280G of the Code or any
successor thereto, and
(ii) if such Termination Benefits were reduced to an amount (the
"Non-Triggering Amount"), the value of which is one dollar ($1.00) less than an
amount equal to the total amount of payments permissible under Section 280G of
the Code or any successor thereto,
then the Termination Benefits to be paid to Executive shall be so reduced so as
to be a Non-Triggering Amount.
7. TERMINATION UPON RETIREMENT, DISABILITY OR DEATH
For purposes of this Agreement, termination by the Association of
Executive's employment based on "Retirement" shall mean termination of the
Executive's employment by the Association upon attainment of age 65, or such
later date as determined by the Board of Directors of the Association. Upon
termination of Executive's employment upon Retirement, Executive shall be
entitled to all benefits under any retirement plan of the Association and other
plans to which Executive is a party but shall not be entitled to the Termination
Benefits specified in Section 6(b) through (f) hereof.
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In the event Executive is unable to perform his duties under this
Agreement on a full-time basis for a period of six (6) consecutive months by
reason of illness or other physical or mental disability, the Association may
terminate this Agreement, provided that the Association shall continue to be
obligated to pay the Executive his Base Salary for one year after such
termination, and provided further that any amounts actually paid to Executive
pursuant to any disability insurance or other similar such program which the
Association has provided or may provide on behalf of its employees or pursuant
to any xxxxxxx'x or social security disability program shall reduce the
compensation to be paid to the Executive pursuant to this paragraph.
In the event of Executive's death during the term of the Agreement, his
estate, legal representatives or named beneficiaries (as directed by Executive
in writing) shall be paid Executive's Base Salary as defined in Paragraph 3(a)
at the rate in effect at the time Executive's death for a period of one (1) year
from the date of the Executive's death, and the Association will continue to
provide medical, dental, family and other benefits normally provided for an
Executive's family for one (1) year after the Executive's death, at the expense
of the Association.
8. TERMINATION FOR CAUSE
The term "Termination for Cause" shall mean termination because of the
Executive's personal dishonesty, incompetence, willful misconduct, any breach of
fiduciary duty involving personal profit, intentional or negligent failure to
perform stated duties, willful violation of any law, rule, or regulation (other
than minor 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 institutions industry. For purposes of this
paragraph, no act or failure to act on the part of Executive shall be considered
"willful" unless done, or omitted to be done, by the Executive not in good faith
and without reasonable belief that the Executive's action or omission was in the
best interest of the Association. Notwithstanding the foregoing, Executive shall
not be deemed to have been Terminated for Cause unless and until there shall
have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than three-fourths of the members of the Board at a
meeting of the Board called and held for that purpose (after reasonable notice
to Executive and an opportunity for him, together with counsel, to be heard
before the Board), finding that in the good faith opinion of the Board,
Executive was guilty of conduct justifying Termination for Cause and specifying
the particulars thereof in detail. Executive shall not have the right to receive
compensation or other benefits for any period after Termination for Cause. Any
stock options granted to Executive under any stock option plan of the
Association, the Company or any subsidiary or affiliate thereof, shall become
null and void effective upon Executive's receipt of Notice of Termination for
Cause pursuant to Section 9 hereof, and shall not be exercisable by Executive at
any time subsequent to such Termination for Cause.
9. NOTICE
(a) Any purported termination by the Association or by Executive shall be
communicated by Notice of Termination to the other party hereto. 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 reasonable detail the facts and circumstances
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claimed to provide a basis for termination of Executive's employment under the
provision so indicated.
(b) "Date of Termination" shall mean (A) if Executive's employment is
terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that he shall not have returned to the performance of his duties
on a full-time basis during such thirty (30) day period), and (B) if his
employment is terminated for any other reason, the date specified in the Notice
of Termination (which, in the case of a Termination for Cause, shall not be less
than thirty (30) days from the date such Notice of Termination is given).
(c) If, within thirty (30) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, except upon the voluntary termination
by the Executive in which case the Date of Termination shall be the date
specified in the Notice, the Date of Termination shall be the date on which the
dispute is finally determined, either by mutual written agreement of the
parties, by a binding arbitration award, or by a final judgment, order or decree
of a court of competent jurisdiction (the time for appeal having expired and no
appeal having been perfected) and provided further that the Date of Termination
shall be extended by a notice of dispute only if such notice is given in good
faith and the party giving such notice pursues the resolution of such dispute
with reasonable diligence. Notwithstanding the pendency of any such dispute, the
Association will continue to pay Executive his full compensation in effect when
the notice giving rise to the dispute was given (including, but not limited to,
Base Salary) and continue Executive as a participant in all compensation,
benefit and insurance plans in which he was participating when the notice of
dispute was given, until the dispute is finally resolved in accordance with this
Agreement, provided such dispute is resolved within the term of this Agreement.
If such dispute is not resolved within the term of the Agreement, the
Association shall not be obligated, upon final resolution of such dispute, to
pay Executive compensation and other payments accruing beyond the term of the
Agreement. Amounts paid under this Section shall be offset against or reduce any
other amounts due under this Agreement.
10. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with paragraph (b) of this Section during the
term of this Agreement and for one (1) full year after the expiration or
termination hereof.
(b) Executive shall, upon reasonable notice, furnish such information and
assistance to the Association as may reasonably be required by the Association
in connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party.
11. NON-COMPETITION
(a) Upon any termination of Executive's employment hereunder, other than
a termination, (whether voluntary or involuntary) in connection with a Change in
Control, as a result of which the Association is paying Executive benefits under
Section 6 of this Agreement, Executive agrees not to compete with the
Association and/or the Company for a period of one (1) year following such
termination within twenty-five (25) miles of any existing branch of the
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Association or any subsidiary of the Company or within twenty-five (25) miles of
any office for which the Association, the Company or a Association subsidiary of
the Company has filed an application for regulatory approval to establish an
office, determined as of the effective date of such termination, except as
agreed to pursuant to a resolution duly adopted by the Board. Executive agrees
that during such period and within said area, cities, towns and counties,
Executive shall not work for or advise, consult or otherwise serve with,
directly or indirectly, any entity whose business materially competes with the
depository, lending or other business activities of the Association and/or the
Company. The parties hereto, recognizing that irreparable injury will result to
the Association and/or the Company, its business and property in the event of
Executive's breach of this Subsection 11(a) agree that in the event of any such
breach by Executive, the Association and/or the Company will be entitled, in
addition to any other remedies and damages available, to an injunction to
restrain the violation hereof by Executive, Executive's partners, agents,
servants, employers, employees and all persons acting for or with Executive.
Executive represents and admits that Executive's experience and capabilities are
such that Executive can obtain employment in a business engaged in other lines
and/or of a different nature than the Association and/or the Company, and that
the enforcement of a remedy by way of injunction will not prevent Executive from
earning a livelihood. Nothing herein will be construed as prohibiting the
Association and/or the Company from pursuing any other remedies available to the
Association and/or the Company for such breach or threatened breach, including
the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Association and
affiliates thereof, as it may exist from time to time, is a valuable, special
and unique asset of the business of the Association. Executive will not, during
or after the term of his employment, disclose any knowledge of the past,
present, planned or considered business activities of the Association or
affiliates thereof to any person, firm, corporation, or other entity for any
reason or purpose whatsoever (except for such disclosure as may be required to
be provided to any federal banking agency with jurisdiction over the Association
or Executive). Notwithstanding the foregoing, Executive may disclose any
knowledge of banking, financial and/or economic principles, concepts or ideas
which are not solely and exclusively derived from the business plans and
activities of the Association, and Executive may disclose any information
regarding the Association or the Company which is otherwise publicly available.
In the event of a breach or threatened breach by the Executive of the provisions
of this Section, the Association will be entitled to an injunction restraining
Executive from disclosing, in whole or in part, the knowledge of the past,
present, planned or considered business activities of the Association or
affiliates thereof, or from rendering any services to any person, firm,
corporation, other entity to whom such knowledge, in whole or in part, has been
disclosed or is threatened to be disclosed. Nothing herein will be construed as
prohibiting the Association from pursuing any other remedies available to the
Association for such breach or threatened breach, including the recovery of
damages from Executive.
12. SOURCE OF PAYMENTS
(a) All payments provided in this Agreement shall be timely paid in cash
or check from the general funds of the Association. The Company, however,
guarantees payment and provision of all amounts and benefits due hereunder to
Executive and, if such amounts and benefits due
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from the Association are not timely paid or provided by the Association, such
amounts and benefits shall be paid or provided by the Company.
(b) Notwithstanding any provision herein to the contrary, to the
extent that payments and benefits, as provided by this Agreement, are paid to or
received by the Executive under the Company Employment Agreement, such
compensation payments and benefits paid the Company will be subtracted from any
amounts due simultaneously to the Executive under similar provisions of this
Agreement. Payments pursuant to this Agreement and the Company Employment
Agreement shall be allocated in proportion to the level of activity and the time
expended on such activities by the Executive as determined by the Company and
the Association on a quarterly basis.
13. NO EFFECT EMPLOYEE BENEFITS PLANS OR PROGRAMS
The termination of the Executive's employment during the term of this
Agreement or thereafter, whether by the Company or by the Executive, shall have
no effect on the vested rights of the executive under the Company's or the
Association's qualified or non-qualified retirement, pension, savings, thrift,
profit-sharing or stock bonus plans, group life, health (including
hospitalization, medical and major medical), dental, accident and long term
disability insurance plans or other employee benefit plans or programs, or
compensation plans or programs in which the Executive was a participant.
14. REQUIRED REGULATORY PROVISIONS
(a) The Association may terminate the Executive's employment at any time.
Executive shall not have the right to receive compensation or other benefits for
any period after Termination for Cause as defined in Section 8 hereinabove.
(b) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Association's affairs by a
notice served under Section 8(e)(3) (12 USC ss.1818(e)(3)) or 8(g) (12 USC
ss.1818(g)) of the Federal Deposit Insurance Act, as amended by the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, the Association's
obligations under this contract shall be suspended as of the date of service,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Association may in its discretion (i) pay the Executive all or
part of the compensation withheld while their contract obligations were
suspended and (ii) reinstate (in whole or in part) any of the obligations which
were suspended.
(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Association's affairs by an order issued
under Section 8(e) (12 USC ss.1818(e)) or 8(g) (12 USC ss.1818(g)) of the
Federal Deposit Insurance Act, as amended by the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, all obligations of the Association under
this contract shall terminate as of the effective date of the order, but vested
rights of the contracting parties shall not be affected.
(d) If the Association is in default as defined in Section 3(x) (12 USC
ss.1813(x)(1)) of the Federal Deposit Insurance Act, as amended by the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, all obligations of
the Association under this contract shall terminate as
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of the date of default, but this paragraph shall not affect any vested rights of
the contracting parties.
(e) All obligations of the Association under this contract shall be
terminated, except to the extent determined that continuation of the contract is
necessary for the continued operation of the Association, (i) by the Federal
Deposit Insurance Corporation ("FDIC"), at the time the FDIC enters into an
agreement to provide assistance to or on behalf of the Association under the
authority contained in Section 13(c) (12 USC ss.1823(c)) of the Federal Deposit
Insurance Act, as amended by the Financial Institutions Reform, Recovery and
Enforcement Act of 1989; or (ii) when the Association is determined by the FDIC
to be in an unsafe or unsound condition. Any rights of the parties that have
already vested, however, shall not be affected by such action.
(f) Notwithstanding anything herein contained to the contrary, any
payments to the Executive by the Company, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with Section
18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and the
regulations promulgated thereunder in 12 C.F.R. Part 359.
15. NO ATTACHMENT
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Association and their respective successors and assigns.
16. ENTIRE AGREEMENT; MODIFICATION AND WAIVER
(a) This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supercedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof, except that the parties acknowledge that this Agreement shall not impact
any of the rights and obligations of the parties to the Company Employment
Agreement or any of the agreements or plans referenced in the Company Employment
Agreement except as set forth in Section 12(b) hereof. No modifications of this
Agreement shall be valid unless made in writing and signed by the parties
hereto.
(b) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(c) 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.
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17. SEVERABILITY
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.
18. HEADINGS FOR REFERENCE ONLY
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.
19. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Indiana but
only to the extent not superseded by federal law.
20. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators, one of whom shall be selected by the Association, one of
whom shall be selected by the Executive and the third of whom shall be selected
by the other two arbitrators. The panel shall sit in a location within fifty
(50) miles from the location of the Association, in accordance with the rules of
the American Arbitration Association then in effect. Judgment may be entered on
the arbitrators award in any court having jurisdiction; provided, however, that
Executive shall be entitled to seek specific performance of his right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
21. PAYMENT OF LEGAL FEES
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Association, provided that the dispute or interpretation
has been settled by Executive and the Association or resolved in the Executive's
favor.
22. INDEMNIFICATION
During the term of this Agreement and for a period of six (6) years
thereafter, the Association shall provide Executive (including his heirs,
executors and administrators) with coverage under a standard directors and
officers liability insurance policy at its expense, and shall indemnify
Executive (and his heirs, executors and administrators) to the fullest extent
permitted under federal law against all expenses and liabilities reasonably
incurred by him in connection with or arising out of any action, suit or
proceeding in which he may be involved by reason of his having been a director
or officer of the Association (whether or not he continues to be a director or
officer at the time of incurring such expenses or liabilities), such expenses
and liabilities to include, but not be limited to, judgments, court costs and
attorneys fees and the cost
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of reasonable settlements (such settlements must be approved by the Board of
Directors of the Association). If such action, suit or proceeding is brought
against Executive in his capacity as an officer or director of the Association,
however, such indemnification shall not extend to matters as to which Executive
is finally adjudged to be liable for willful misconduct in the performance of
his duties.
23. SUCCESSOR TO THE ASSOCIATION
The Association shall require any successor or assignee, whether direct
or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Association or the Company,
expressly and unconditionally to assume and agree to perform the Association's
obligations under this Agreement, in the same manner and to the same extent that
the Association would be required to perform if no such succession or assignment
had taken place.
[Remainder of Page Intentionally Blank]
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SIGNATURES
IN WITNESS WHEREOF, the Association and the Company have caused this
Agreement to be executed and their seals to be affixed hereunto by their duly
authorized officers, and Executive has signed this Agreement, on the day and
date first above written.
ATTEST: DEARBORN SAVINGS ASSOCIATION, F.A.
By:
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Secretary
ATTEST: DSA FINANCIAL CORPORATION
By:
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Secretary
WITNESS: EXECUTIVE:
By:
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