Exhibit 10.4 Form of Proposed Employment Agreement between EFC Bancorp, Inc.
and certain executive officers
FORM OF
EFC BANCORP, INC.
EMPLOYMENT AGREEMENT
This AGREEMENT ("Agreement") is made effective as of ________________, by
and between EFC Bancorp, Inc. (the "Holding Company"), a corporation
organized under the laws of Delaware, with its principal offices at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and _________________ ("Executive").
Any reference to "Institution" herein shall mean Elgin Financial Center, S.B.
or any successor thereto.
WHEREAS, the Holding Company wishes to assure itself of the services of
Executive for the period provided in this Agreement; and
WHEREAS, the Executive is willing to serve in the employ of the Holding
Company on a full-time basis for said period.
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 Executive's employment hereunder, Executive agrees
to serve as the [Title] of the Holding Company. The Executive shall render
administrative and management services to the Holding 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 and
director of any subsidiary of the Holding Company.
2. TERMS.
(a) The period of Executive's employment under this Agreement shall be
deemed to have commenced as of the date first above written and shall
continue for a period of thirty-six (36) full calendar months thereafter.
Commencing on the date of the execution of this Agreement, the term of this
Agreement shall be extended for one day each day until such time as the board
of directors of the Holding Company (the "Board") or Executive elects not to
extend the term of the Agreement by giving written notice to the other party
in accordance with Section 8 of this Agreement, in which case the term of
this Agreement shall be fixed and shall end on the third anniversary of the
date of such written notice.
(b) During the period of Executive's 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 Holding
Company and its direct or indirect subsidiaries ("Subsidiaries") and
participation in community and civic organizations; provided, however, that,
with the approval of the Board, as evidenced by a resolution of such Board,
from time to time, Executive may serve, or continue to serve, on the boards
of directors of, and hold any other offices or positions in, companies or
organizations, which, in such Board's judgment, will not present any conflict
of interest with the Holding Company or its Subsidiaries, or materially
affect the performance of Executive's duties pursuant to this Agreement.
(c) Notwithstanding anything herein contained to the contrary,
Executive's employment with the Holding Company may be terminated by the
Holding Company or Executive during the term of this Agreement, subject to
the terms and conditions of this Agreement. However, Executive shall not
perform, in any respect, directly or indirectly, during the pendency of his
temporary or permanent suspension or termination from the Institution, duties
and responsibilities formerly performed at the Institution as part of his
duties and responsibilities as [Title] of the Holding Company.
3. COMPENSATION AND REIMBURSEMENT.
(a) The Executive shall be entitled to a salary from the Holding Company
or its Subsidiaries of $________ per year ("Base Salary"). Base Salary shall
include any amounts of compensation deferred by Executive under any qualified
or unqualified plan maintained by the Holding Company and its Subsidiaries.
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 one year from the date of this
Agreement. Such review shall be conducted by the Board or by a Committee of
the Board delegated such responsibility by the Board. The Committee or the
Board may increase 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 Holding Company shall
also provide Executive, at no premium cost to Executive, with all such other
benefits as provided uniformly to permanent full-time employees of the
Holding Company and its Subsidiaries.
(b) The Executive shall be entitled to participate in any 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
Holding Company and its Subsidiaries will not, without Executive's prior
written consent, make any changes in such plans, arrangements or perquisites
which would materially adversely affect Executive's rights or benefits
thereunder, except to the extent that such changes are made applicable to all
Holding Company and Institution employees eligible to participate in such
plans, arrangements and perquisites on a non-discriminatory basis. Without
limiting the generality of the foregoing provisions of this Subsection (b),
Executive shall 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,
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stock or option plans, health-and-accident plans, medical coverage or any
other employee benefit plan or arrangement made available by the Holding
Company and its Subsidiaries 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 shall be entitled to incentive compensation and bonuses as provided
in any plan or arrangement of the Holding Company and its Subsidiaries in
which Executive is eligible to participate. 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 paragraph (a) of this
Section 3 and other compensation provided for by paragraph (b) of this
Section 3, the Holding Company shall pay or reimburse Executive for all
reasonable travel and other reasonable expenses incurred in the performance
of Executive's 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. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) 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 shall apply. As used in this Agreement, an "Event
of Termination" shall mean and include any of the following: (i) the
termination by the Holding Company of Executive's full-time employment
hereunder for any reason other than termination governed by Section 5(a)
hereof, or for Cause, as defined in Section 7 hereof; (ii) Executive's
resignation from the Holding Company's employ, upon, any (A) unless consented
to by the Executive, failure to elect or reelect or to appoint or reappoint
Executive as [TITLE] or failure to nominate or renominate Executive as a
Director of the Institution or Holding Company to the extent Executive was
serving as a Director as of the date of this Agreement, (B) a material change
in Executive's function, duties, or responsibilities with the Holding Company
or its Subsidiaries, 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, unless consented to by the
Executive, (C) a reduction in the benefits and perquisites to the Executive
from those being provided as of the effective date of this Agreement, unless
consented to by the Executive, (D) a relocation of Executive's principle
place of employment by more than 25 miles from his location immediately prior
to the Event of Termination, (E) a liquidation or dissolution of the Holding
Company or the Institution, or (F) breach of this Agreement by the Holding
Company. Upon the occurrence of any event described in clauses (A), (B),
(C), (D), (E) or (F), above, Executive shall have the right to elect to
terminate his employment under this Agreement by resignation upon not less
than sixty (60) days prior written notice given within six full calendar
months after the event giving rise to said right to elect.
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(b) Upon the occurrence of an Event of Termination, on the Date of
Termination, as defined in Section 8, the Holding Company shall be obligated
to pay Executive, or, in the event of his subsequent death, his beneficiary
or beneficiaries, or his estate, as the case may be, a sum equal to the sum
of: (i) the amount of the remaining payments that the Executive would have
earned if he had continued his employment with the Institution during the
remaining term of this Agreement at the Executive's Base Salary at the Date
of Termination; and (ii) the amount equal to the annual contributions or
payments that would have been made on Executive's behalf to any employee
benefit plans of the Institution or the Holding Company during the remaining
term of this Agreement based on contributions or payments made (on an
annualized basis) at the Date of Termination. At the election of the
Executive, which election is to be made prior to a Change in Control, such
payment shall be made: (a) in a lump sum as of the Executive's Date of
Termination, (b) on a bi-weekly basis in approximately equal installments
during the remaining term of the Agreement, or (c) on an annual basis in
approximately equal installments during the remaining term of the 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 Holding Company
will cause to be continued life, medical, dental and disability coverage
substantially equivalent to the coverage maintained by the Holding Company or
its Subsidiaries for Executive prior to his termination at no premium cost to
the Executive. Such coverage shall cease upon the expiration of the
remaining term of this Agreement.
5. CHANGE IN CONTROL.
(a) For purposes of this Agreement, a "Change in Control" of the Holding
Company or the Institution shall mean an event 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 ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇"); or (ii) results in
a Change in Control of the Bank or the Holding Company within the meaning of
the Change in Bank Control Act and the Rules and Regulations promulgated by
the Federal Deposit Insurance Corporation ("FDIC") at 12 C.F.R. Section
303.4(a), with respect to the Institution, and the Rules and Regulations
promulgated by the Office of Thrift Supervision ("OTS") (or its predecessor
agency), with respect to the Holding Company, as in effect on the date of
this Agreement; 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 voting securities of the Institution or the
Holding Company representing 20% or more of the Institution's or the Holding
Company's outstanding voting securities or right to acquire such securities
except for any voting securities of the Institution purchased by the Holding
Company and any voting securities purchased by any employee benefit plan of
the Holding Company or its Subsidiaries, 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
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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 a Nominating Committee solely composed of
members which are Incumbent Board members, 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 Institution or the Holding Company or
similar transaction occurs or is effectuated in which the Institution or
Holding Company is not the resulting entity, or (D) a proxy statement has
been distributed soliciting proxies from stockholders of the Holding Company,
by someone other than the current management of the Holding Company, seeking
stockholder approval of a plan of reorganization, merger or consolidation of
the Holding Company or Institution 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 Institution or the Holding Company shall be
distributed, or (E) a tender offer is made for 20% or more of the voting
securities of the Institution or Holding Company then outstanding.
(b) If a Change in Control has occurred pursuant to Section 5(a) or the
Board has determined that a Change in Control has occurred, Executive shall
be entitled to the benefits provided in paragraphs (c) and (d), of this
Section 5 upon his subsequent termination of employment at any time during
the term of this Agreement due to (i) Executive's dismissal, or (ii)
Executive's voluntary resignation following any demotion, loss of title,
office or significant authority or responsibility,reduction in the annual
compensation or material reduction in benefits or relocation of his principal
place of employment by more than 25 miles from its location immediately prior
to the change in control, unless such termination is because of his death or
termination for Cause.
(c) Upon the Executive's entitlement to benefits pursuant to Section
5(b), the Holding 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 payments due for the remaining term of the Agreement;
or (ii) three (3) times Executive's annual compensation for the most
recently completed year. Such annual compensation shall include Base Salary,
commissions, bonuses, contributions or accruals on behalf of Executive to any
pension and profit sharing plan, any benefits to be paid or received under
any stock-based benefit plan, severance payments, directors or committee fees
and fringe benefits paid or to be paid to the Executive during such years.
At the election of the Executive, which election is to be made prior to a
Change in Control, such payment shall be made: (a) in a lump sum, (b) on a
bi-weekly basis in approximately equal installments over a period of
thirty-six (36) months following the Executive's termination, or (c) on an
annual basis in approximately equal installments over a period of thirty-six
(36) months following the Executive's termination. Such payments shall not
be reduced in the event Executive obtains other employment following
termination of employment.
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(d) Upon the Executive's entitlement to benefits pursuant to Section
5(b), the Company will cause to be continued life, medical, dental and
long-term or other disability coverage substantially equivalent to the
coverage maintained by the Institution for Executive at no premium cost to
Executive prior to his severance. Such coverage and payments shall cease
upon the expiration of thirty-six (36) months following the Change in Control.
6. CHANGE OF CONTROL RELATED PROVISIONS.
In each calendar year that Executive is entitled to receive payments or
benefits under the provisions of this Employment Agreement, the Holding
Company shall determine if an excess parachute payment (as defined in Section
4999 of the Internal Revenue Code of 1986, as amended, and any successor
provision thereto, (the "Code")) exists. Such determination shall be made
after taking any reductions permitted pursuant to Section 280G of the Code
and the regulations thereunder. Any amount determined to be an excess
parachute payment after taking into account such reductions shall be
hereafter referred to as the "Initial Excess Parachute Payment". As soon as
practicable after a Change in Control, the Initial Excess Parachute Payment
shall be determined. Upon the Date of Termination following a Change in
Control, the Holding Company shall pay Executive, subject to applicable
withholding requirements under applicable state or federal law, an amount
equal to:
(1) twenty (20) percent of the Initial Excess Parachute Payment (or such
other amount equal to the tax imposed under Section 4999 of the Code);
and
(2) such additional amount (tax allowance) as may be necessary to
compensate Executive for the payment by Executive of state and federal
income and excise taxes on the payment provided under clause (1) and
on any payments under this Clause (2). In computing such tax
allowance, the payment to be made under Clause (1) shall be multiplied
by the "gross up percentage" ("GUP"). The GUP shall be determined as
follows:
Tax Rate
GUP = ------------
1- Tax Rate
The "Tax Rate" for purposes of computing the GUP shall be the sum of
the highest marginal federal and state income and employment-related
tax rates, including any applicable excise tax rates, applicable to
the Executive in the year in which the payment under Clause (1) is
made.
(3) Notwithstanding the foregoing, if it shall subsequently be
determined in a final judicial determination or a final administrative
settlement to which Executive is a party that the excess parachute payment as
defined in Section 4999 of the Code, reduced as described
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above, is more than the Initial Excess Parachute Payment (such different
amount being hereafter referred to as the "Determinative Excess Parachute
Payment") then the Holding Company's independent accountants shall determine
the amount (the "Adjustment Amount") the Holding Company must pay to the
Executive in order to put the Executive in the same position as the Executive
would have been if the Initial Excess Parachute Payment had been equal to the
Determinative Excess Parachute Payment. In determining the Adjustment
Amount, independent accountants of the Holding Company shall take into
account any and all taxes (including any penalties and interest) paid by or
for Executive or refunded to Executive or for Executive's benefit. As soon
as practicable after the Adjustment Amount has been so determined, the
Holding Company shall pay the Adjustment Amount to Executive. In no event
however, shall Executive make any payment under this paragraph to the Holding
Company.
7. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination because of: 1)
Executive's personal dishonesty, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule, regulation (other than traffic violations
or similar offenses), final cease and desist order or material breach of any
provision of this Agreement which results in a material loss to the
Institution or the Holding Company, or 2) Executive's conviction of a crime
or act involving moral turpitude or a final judgement rendered against
Executive based upon actions of Executive which involve moral turpitude. For
the purposes of this Section, no act, or the failure to act, on Executive's
part shall be "willful" unless done, or omitted to be done, not in good faith
and without reasonable belief that the action or omission was in the best
interests of the Bank or its affiliates. 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 Notice of Termination which
shall include 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. The Executive shall not have the right to
receive compensation or other benefits for any period after Termination for
Cause. During the period beginning on the date of the Notice of Termination
for Cause pursuant to Section 8 hereof through the Date of Termination, stock
options and related limited rights granted to Executive under any stock
option plan shall not be exercisable nor shall any unvested awards granted to
Executive under any stock benefit plan of the Institution, the Holding
Company or any subsidiary or affiliate thereof, vest. At the Date of
Termination, such stock options and related limited rights and any such
unvested awards shall become null and void and shall not be exercisable by or
delivered to Executive at any time subsequent to such Termination for Cause.
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8. NOTICE.
(a) Any purported termination by the Holding Company 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 claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(b) "Date of Termination" shall mean 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);
provided, however, that if a dispute regarding the Executive's termination
exists, the "Date of Termination" shall be determined in accordance with
Section 8(c) of this Agreement.
(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
occurrence of a Change in Control and 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 therefrom 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 Holding Company 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 him 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. Amounts paid under this
Section are in addition to all other amounts due under this Agreement and
shall not be offset against or reduce any other amounts due under this
Agreement.
9. POST-TERMINATION OBLIGATIONS.
All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with this Section 9 for one (1) full year
after the earlier of the expiration of this Agreement or termination of
Executive's employment with the Holding Company. Executive shall, upon
reasonable notice, furnish such information and assistance to the Holding
Company as may reasonably be required by the Holding Company in connection
with any litigation in which it or any of its subsidiaries or affiliates is,
or may become, a party.
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10. NON-COMPETITION AND NON-DISCLOSURE.
(a) Upon any termination of Executive's employment hereunder pursuant to
Section 4 hereof, Executive agrees not to compete with the Holding Company or
its Subsidiaries for a period of one (1) year following such termination in
any city, town or county in which the Executive's normal business office is
located and the Holding Company or any of its Subsidiaries has an office or
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 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 Holding Company or
its Subsidiaries. The parties hereto, recognizing that irreparable injury
will result to the Holding Company or its Subsidiaries, its business and
property in the event of Executive's breach of this Subsection 10(a) agree
that in the event of any such breach by Executive, the Holding Company or its
Subsidiaries, 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, employees and all persons acting for
or under the direction of Executive. Executive represents and admits that in
the event of the termination of his employment pursuant to Section 7 hereof,
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 Holding Company or its Subsidiaries, 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 Holding
Company or its Subsidiaries from pursuing any other remedies available to the
Holding Company or its Subsidiaries 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 Holding Company
and its Subsidiaries as it may exist from time to time, is a valuable,
special and unique asset of the business of the Holding Company and its
Subsidiaries. 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 Holding Company and its Subsidiaries thereof to any person,
firm, corporation, or other entity for any reason or purpose whatsoever
unless expressly authorized by the Board of Directors or required by law.
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 Holding Company. Further, Executive may disclose information regarding
the business activities of the Bank or Holding Company to the Commissioner of
Banks and Real Estate of the State of Illinois ("Commissioner"), OTS and the
Federal Deposit Insurance Corporation ("FDIC") pursuant to a formal
regulatory request. In the event of a breach or threatened breach by the
Executive of the provisions of this Section, the Holding Company 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 Holding Company or its Subsidiaries or from rendering any
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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 Holding
Company from pursuing any other remedies available to the Holding Company for
such breach or threatened breach, including the recovery of damages from
Executive.
11. SOURCE OF PAYMENTS.
(a) All payments provided in this Agreement shall be timely paid in cash
or check from the general funds of the Holding Company subject to Section
11(b).
(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 Executive under the Employment Agreement dated as of
_________________, between Executive and the Institution, such compensation
payments and benefits paid by the Institution will be subtracted from any
amount due simultaneously to Executive under similar provisions of this
Agreement. Payments pursuant to this Agreement and the Institution 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 Holding
Company and the Institution on a quarterly basis.
12. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior employment agreement between the Holding
Company or any predecessor of the Holding Company and Executive, except that
this Agreement shall not affect or operate to reduce any benefit or
compensation inuring to the Executive of a kind elsewhere provided. No
provision of this Agreement shall be interpreted to mean that Executive is
subject to receiving fewer benefits than those available to him without
reference to this Agreement.
13. 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 Holding Company and their respective successors and assigns.
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14. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) 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.
15. 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.
16. 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.
17. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Delaware,
unless otherwise specified herein.
18. 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 sitting in a location selected by the Executive
within fifty (50) miles from the location of the Institution, in accordance
with the rules of the American Arbitration Association then in effect.
Judgment may be entered on the arbitrator's 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.
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19. PAYMENT OF COSTS AND LEGAL FEES AND REINSTATEMENT OF BENEFITS.
In the event any dispute or controversy arising under or in connection
with Executive's termination is resolved in favor of the Executive, whether
by judgment, arbitration or settlement, Executive shall be entitled to the
payment of: (1) all legal fees incurred by Executive in resolving such
dispute or controversy, and (2) any back-pay, including salary, bonuses and
any other cash compensation, fringe benefits and any compensation and
benefits due Executive under this Agreement.
20. INDEMNIFICATION.
The Holding Company 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 Delaware 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 Holding Company (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 of reasonable settlements.
21. SUCCESSOR TO THE HOLDING COMPANY.
The Holding Company 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 Institution or the Holding
Company, expressly and unconditionally to assume and agree to perform the
Holding Company's obligations under this Agreement, in the same manner and to
the same extent that the Holding Company would be required to perform if no
such succession or assignment had taken place.
12
SIGNATURES
IN WITNESS WHEREOF, EFC Bancorp, Inc. has caused this Agreement to be
executed and its seal to be affixed hereunto by its duly authorized officer
and its directors, and Executive has signed this Agreement, on the ______ day
of __________, 1997.
ATTEST: EFC BANCORP, INC.
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇ [Name]
Secretary For the Board of Directors
[SEAL]
WITNESS:
By:
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[Name]
Executive
