INDEMNIFICATION AGREEMENT
This
INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into this 15th
day of June, 2009 by and between CFS BANCORP, INC. (the “Company”), an Indiana
corporation, and XXXXXXXX X. XXXXXX (the “Indemnitee”), currently a resident of
the State of Indiana,
W I T N E S S E T
H:
WHEREAS, a shareholder derivative
demand has been made on the Company by PL Capital, LLC and/or Mr. Xxxx Xxxxxx as
set forth in a letter to the Board of Directors dated March 25, 2009 (the
“Shareholder Demand”); and
WHEREAS, the Board of Directors has
determined it is in the best interests of the Company to create a committee
consisting of three disinterested persons for the purpose of performing the
duties and responsibilities under Indiana Code 23-1-32 (the “Special
Committee”); and
WHEREAS, the Board of Directors desires
to appoint the Indemnitee to serve on the Special Committee; and
WHEREAS, in recognition of the
heightened scrutiny and responsibility associated with serving on the Special
Committee, and as an inducement to the Indemnitee to so serve, the Board of
Directors has determined that the Indemnitee should be provided with adequate
assurances of indemnity as provided in this Agreement; and
WHEREAS, the Indemnitee desires to
serve on the Special Committee at the request of the Board of Directors of the
Company subject to the Company’s execution of this Agreement; and
WHEREAS, this Agreement is permitted
under Indiana law, which is the corporate law governing the Company, as well as
the Company’s Articles of Incorporation and has been approved by the Company’s
Board of Directors.
NOW,
THEREFORE, in
consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Indemnitee, intending to be legally bound hereby, hereto agree
as follows:
1. Certain
Definitions.
(a) “Claim” or “Claims”
includes, but is not limited to, any threatened, pending, asserted or completed
(i) demand, claim, action, suit, proceeding (whether civil, derivative,
criminal, administrative, investigative or otherwise), counterclaim, crossclaim,
arbitration or mediation, (ii) demand, claim, action, suit, proceeding,
counterclaim or crossclaim by or in the name or right of the Company, (iii)
inquiry, hearing, investigation or other process (whether conducted by the
Company, a government agency, body, department or authority or any other
party),
and (iv) appeal of any of the foregoing, in each case in which the Indemnitee is
a party or a participant, is in any way involved or named or incurs any Losses
or Expenses and in connection with, relating to or arising from an Indemnifiable
Act.
(b)
“D&O Insurance” means the Company’s (i) directors’ and officers’, EPLI,
ERISA and fiduciary claims made insurance policy in effect on the date of this
Agreement, which presently has an aggregate liability limit of Ten Million
Dollars ($10,000,000), (ii) “tail” coverage or an extended reporting period
under such policy for the Indemnitee and (iii) any other applicable insurance
policy providing coverage to the Indemnitee. The D&O Insurance
presently has a deductible or retainage amount equal to Two Hundred Thousand
Dollars ($200,000).
(c) “Expense” or
“Expenses” includes, but is not limited to, any and all expenses and
costs incurred or paid by the Indemnitee in connection with or relating to a
Claim for an Indemnifiable Act including, but not limited to, (i) reasonable
fees, retainers, costs, expenses and disbursements of attorneys for the
Indemnitee, (ii) reasonable costs, expenses and other amounts (including
reasonable travel and copying costs) paid or incurred by the Indemnitee in
connection with or relating to the Indemnitee investigating, defending, being a
witness or deponent in, preparing for, participating in or otherwise dealing
with any Claim, and (iii) deductibles and retainage amounts under the D&O
Insurance. “Expense” and “Expenses” shall also include the value of
any time of the Indemnitee reasonable spent investigating, defending, being a
witness or deponent in, preparing for, participating in or otherwise dealing
with any Claim with the value of such time determined in good faith by the
Company and consistent with the manner in which fees were paid with respect to
the service to the Special Committee.
(d) “Indemnifible Act”
means any event, occurrence, action, decision, inaction or omission in the
Indemnitee’s service or position on the Special Committee.
(e) “Loss” or “Losses”
includes, but is not limited to, any and all monetary obligations, liabilities
and amounts that the Indemnitee is legally required to pay in connection with or
relating to a Claim for an Indemnifiable Act including, but not limited to, (i)
judgments, damages, awards, orders, decrees and sums paid in settlement, (ii)
fines, penalties, excise taxes, assessments, interest and other charges, and
(iii) taxes imposed on the Indemnitee as a result of or relating to any amounts
paid to or on behalf of the Indemnitee under this Agreement.
(f) “Standard of Conduct”
means that the Indemnitee acted, or that the Indemnitee’s conduct with respect
to an Indemnifiable Act was, based upon the facts then known to him, in good
faith in what he reasonably believed to be in, or not opposed to, the best
interests of the Company, and, in addition, in any criminal Claim the Indemnitee
had reasonable cause to believe that his conduct was lawful or no reasonable
cause to believe that his conduct was unlawful. The termination or
resolution of any Claim, by judgment, order, settlement (whether with or without
court approval or with or without prejudice), consent decree or conviction or
upon a plea of guilty or nolo contendere shall not of itself create a
presumption that the Indemnitee did not meet the Standard of
Conduct.
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2. Indemnification.
(a)
Except as provided in Section 2(b) hereof, the Company shall indemnify, defend
and hold harmless the Indemnitee for and against, and shall pay, each and
every Loss and Expense of the Indemnitee in connection with or relating to a
Claim with respect to which an Indemnifiable Act is involved and the Indemnitee
has met or complied with the Standard of Conduct. There shall be a
presumption that the Indemnitee is entitled to indemnification, payment and
defense under this Agreement.
(b)
Nothwithstanding anything to the contrary contained in this Agreement, the
Company shall have no obligation to indemnify, defend or hold harmless the
Indemnitee,
or to pay, under this Agreement to the extent that (i) the Indemnitee has not
met or complied with the Standard of Conduct, (ii) the proceeds from any policy
of D&O Insurance have been paid to or on behalf of the Indemnitee in full
and complete satisfaction of a Loss or Expense covered by this Agreement, (iii)
a Loss or Expense has already been paid, in full, to or on behalf of the
Indemnitee by the Company or by another source of indemnity, (iv) payment by the
Company of any Loss or Expense is prohibited by any law, rule or regulation now
or hereafter in effect or by any court or government agency or authority, or (v)
the Loss or Expense is not covered by or otherwise not properly payable under
this Agreement.
3. Indemnification
Procedures.
(a) Promptly
after the Company or the Indemnitee receives notice or otherwise becomes aware
of the existence, commencement or threat of any Claim, the Company or the
Indemnitee, as the case may be, shall give written notice (the “Indemnification
Notice”) to the other, provide pertinent information with respect to such Claim
and keep the other generally informed of, and consult with the other with
respect to, the status of such Claim.
(b) The
Company shall give prompt notice of, and take such other necessary or
appropriate actions with respect to, the Claim as is required by the policies of
D&O Insurance. The Company shall thereafter use its reasonable
efforts to cause the insurers that have issued the D&O Insurance to pay promptly to or on
behalf of the Indemnitee all Losses and Expenses relating to such Claim in
accordance with and to the extent covered by the policies of D&O
Insurance.
(c) In
all cases, the Company shall pay all Expenses of the Indemnitee in advance of
the final disposition, termination or resolution of the applicable Claim unless
payment of such Expenses has already been made to or on behalf of the Indemnitee
or is prohibited by any law, rule or regulation or by any court or government
agency or authority. In all cases, the Company shall pay all Losses
of the Indemnitee in advance of the final disposition, termination or resolution
of the applicable Claim unless payment for such Losses has already been made to
or on behalf of the Indemnitee or is prohibited by any law, rule or regulation
or by any court or government agency or authority. All payments of
Losses or Expenses on account of the Company’s obligations under this Agreement
shall be made within thirty (30) days of each written request therefor by the
Indemnitee. Each such written request shall be accompanied by a
written affirmation by the Indemnitee that the Loss or Expense is covered by
this Agreement,
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that the
Indemnitee has met or complied with the Standard of Conduct and that the
Indemnitee shall reimburse the Company as provided in Section 3(d)
hereof.
(d) Notwithstanding
anything to the contrary contained in this Agreement, the Indemnitee shall
reimburse the Company for all Losses and Expenses paid by the Company to or on
behalf of the Indemnitee in the event and only to the extent that the Indemnitee
is not entitled to indemnification for such Losses of Expenses pursuant to
Section 2(b) hereof. The Indemnitee’s obligation to reimburse the
Company shall be unsecured and no interest shall accrue or be charged thereon
unless it is determined pursuant to one of the methods identified in Section
3(f) hereof that the Indemnitee is required to reimburse the Company and, in
such event, interest on the amount to be reimbursed to the Company by the
Indemnitee shall accrue and be due and payable from the date of the written
opinion of the law firm or the order or judgment of the court, as the case may
be, referenced in Section 3(f) hereof until the amount required to be reimbursed
plus all interest thereon shall have been paid in full by the
Indemnitee. The rate of interest shall be equal to the highest prime
rate announced or utilized by Citizens Financial Bank as of the date that
interest shall begin to accrue and shall remain fixed as of the same date until
the amount to be reimbursed plus all interest thereon shall have been paid in
full. If it has been determined pursuant to Section 3(f) hereof that
the Indemnitee is required to reimburse the Company for any Losses or Expenses
previously paid by the Company under this Agreement and the Indemnitee refuses
or is unable to reimburse the Company, then in addition to the interest
referenced above, the Indemnitee shall pay the reasonable attorneys’ fees and
all other costs and expenses of the Company relating to its collection efforts
for the amount owed by the Indemnitee.
(e) In
connection with the defense of any Claim against or involving the Indemnitee,
the Company shall have the right, at its option, to defend, at its own expense
and through legal counsel of its own choosing, such Claim; provided, however,
that the Indemnitee shall have first consented to the legal counsel selected by
the Company, which consent shall not be unreasonably withheld. If the
Company undertakes to defend a Claim, it shall promptly give written notice to
the Indemnitee of its intention to do so. If legal counsel reasonably
satisfactory to the Indemnitee is not selected by the Company within thirty (30)
days of any Indemnification Notice, then the Indemnitee may select counsel to
defend the Claim and, in such event, the Company shall be responsible for and
pay all Expenses relating to such counsel; provided, however, that if the
Indemnitee shall unreasonably fail to give his consent to the legal counsel
selected by the Company, then the Company shall have the right to engage counsel
of its choice to defend such Claim without the necessity of obtaining the
Indemnitee’s consent, and all Expenses relating to such counsel shall
nevertheless be paid by the Company.
Whether
or not the Company chooses to defend a Claim, the Company and the Indemnitee
shall cooperate in the defense thereof and shall furnish such records,
information and testimony, and attend such conferences, discovery proceedings,
mediations, arbitrations, hearings, trials, appeals and pre-trial and
post-judgment proceedings as may be reasonably requested in connection
therewith.
Notwithstanding
an election by the Company to assume the defense of a Claim, the Indemnitee
shall have the right to employ separate counsel and to participate in the
defense of
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such Claim but, in such
event, the Indemnitee shall be responsible for and pay all Expenses relating to
such separate counsel. If, during the course of the defense of any
Claim, a conflict of interest develops with the legal counsel defending the
Claim, then the party who has selected such counsel shall promptly notify the
other party and new counsel shall be selected using the same procedures and time
periods referenced in this subsection.
The Company shall have no obligation to
indemnify, defend or hold harmless the Indemnitee, or to pay, under this
Agreement for any amounts paid in settlement of a Claim effected without the
Company’s prior written consent, which consent shall not be unreasonably
withheld. The Company shall not, without the Indemnitee’s prior
written consent (which consent shall not be unreasonably withheld), settle any
Claim in any manner which would impose or result in any Loss or Expense that is
not payable in full to or on behalf of the Indemnitee by the Company, any
D&O Insurance or another source of
indemnity, which would impose or result in any fine or penalty against the
Indemnitee or which does not include as part of the settlement a full and
complete release of the Indemnitee with respect to the Claim.
(f) In
the event of any dispute between the Company and the Indemnitee under this
Agreement or relating to the respective obligations of the Company and the
Indemnitee hereunder, the Company shall nevertheless pay all Losses and Expenses
of the Indemnitee and provide indemnification and defense subject to the
Indemnitee’s obligation to reimburse the Company pursuant to Section 3(d)
hereof. The Company and the Indemnitee shall resolve any such dispute
through either of the following two methods: (i) by the written opinion of a law
firm mutually agreed upon by the Company and the Indemnitee or, if the Company
and the Indemnitee are unable to mutually agree upon such a law firm within
fifteen days of the proposal by either party to resolve the dispute by law firm
written opinion, or (ii) by a court of competent jurisdiction. If the
method in (i) above is used, the Company and the Indemnitee shall mutually agree
to the procedures to be utilized by the law firm in connection with its written
opinion, all fees, costs and expenses of the law firm in connection with its
written opinion shall be paid by the Company, and the Company and the Indemnitee
shall not challenge the conclusions set forth in such written opinion in court
(with the opinion of such law firm being final and binding upon the Company and
the Indemnitee).
In connection with any written opinion
of a law firm or any action, suit or proceeding in which the Indemnitee seeks to
enforce this Agreement, the Company shall have the burden of proof that any
indemnification, payment or defense is not required under this
Agreement. The termination, resolution or completion of any Claim by
judgment, order, settlement (whether with or without court approval or whether
with or without prejudice), consent decree or conviction, or upon a plea of
guilty, nolo contendere or its equivalent, shall not of itself create a
presumption that the Indemnitee did not meet or comply with the Standard of
Conduct. In addition, a determination that a Loss or Expense is not
covered by D&O Insurance shall not of itself
create a presumption that the Indemnitee is not entitled to indemnification
under this Agreement. Until it is determined by the written opinion
of a law firm or a court (as provided in this subsection) that the Indemnitee is
not entitled to indemnification, payment or defense under this Agreement, the
Company shall indemnify, pay, defend and hold harmless the Indemnitee under this
Agreement, subject to the Indemnitee’s obligation to reimburse the Company
pursuant to Section 3(d) hereof.
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4. Partial
Indemnity; Success in Defense of a Claim. If the Indemnitee
is entitled to indemnification, payment or defense under this Agreement for a
portion, but not all, of any Losses or Expenses, the Company shall nevertheless
indemnify, pay and defend the Indemnitee for the portion thereof to which the
Indemnitee is entitled. Notwithstanding any other provision of this
Agreement, to the extent that the Indemnitee has been successful on the merits
in connection with the defense of any Claims relating in whole or in part to an
Indemnifiable Act, the Indemnitee shall be indemnified against and paid for all
Losses and Expenses incurred in connection therewith.
5. No
Presumption. For purposes of
this Agreement, the disposition, termination or resolution of any Claim by
judgment, order, settlement (whether with or without court approval or whether
with or without prejudice), consent decree or conviction, or upon a plea of
guilty or nolo contendere or its equivalent,
shall not create a presumption that the Indemnitee did not meet or comply with
the Standard of Conduct or is not entitled to indemnification or payment under
this Agreement or that the Indemnitee had any particular belief.
6. Rights
under Company’s Articles of Incorporation. As provided under
Section 6.2(k) of Article VI of the Company’s Articles of Incorporation now in
effect, Indemnitee shall have the right to indemnification and advancement of
Liabilities and Expenses (as defined therein) to the fullest extent of the
provisions of Section 6.2 of Article VI of the Company’s Articles of
Incorporation with respect to the indemnification of, and advancement of
Liabilities and Expenses to, directors or officers of the Company.
7. Non-exclusivity;
Conflict. The rights of the
Indemnitee under this Agreement shall be in addition to any other rights that
the Indemnitee may have under the Company’s Articles of Incorporation or By-Laws
or under applicable law, all as presently or hereafter in effect (but, in the
case of any amendment or successor to the present provisions regarding
indemnification of the Indemnitee set forth in the Company’s Articles of
Incorporation or By-Laws or as provided by applicable law, only to the extent
that such amendments or successor provisions provide broader indemnification
rights than the Company’s Articles of Incorporation or By-Laws or applicable law
currently provide), under any D&O Insurance or
otherwise.
Notwithstanding the foregoing,
subsequent to the date of this Agreement, the Company may propose to amend,
restate or otherwise change its Articles of Incorporation only to the extent
that any such proposal to amend, restate or change does not reduce or adversely
affect the rights to indemnification provided to the Indemnitee under Section
6.2 of Article VI of the Company’s current Articles of
Incorporation.
In the event of any conflict in the
indemnification provided to the Indemnitee now or in the future under the
Company’s Articles of Incorporation or By-Laws, applicable law or this
Agreement, the provisions providing the Indemnitee with the broadest
indemnification shall apply and control.
8. Subrogation. In the event of
any payment by the Company under this Agreement, the Company shall be subrogated
to the extent of such payment to all of the rights of recovery of the
Indemnitee, who shall execute all documents and other papers and do all other
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acts and
things reasonably required by the Company to secure, perfect or enforce such
subrogation rights.
9. D&O
Insurance. For a period of four (4) years following the date
that the Indemnitee resigns or is no longer serving as a member of the Special
Committee of the Board of Directors of the Company, the Company, at its sole
cost and expense, shall maintain in full force and effect and cover the
Indemnitee under the D&O Insurance or similar policy and shall maintain in
full force and effect “tail” coverage or an extended reporting period under the
D&O Insurance or similar policy for the Indemnitee.
10. Duration
of Agreement. This Agreement
shall remain in full force and effect until the applicable statute of
limitations for each and every Claim in connection with or relating to an
Indemnifiable Act has expired.
11. Enforcement
Expenses. The Company shall
pay the Indemnitee’s reasonable attorneys’ fees and other costs and expenses in
connection with or relating to the Indemnitee successfully establishing his
rights to indemnification, payment or defense (in whole or in part) under this
Agreement or otherwise successfully enforcing this Agreement. The
Company shall pay such attorneys’ fees, costs and expenses (i) as they are
incurred by the Indemnitee and in advance of the disposition of any action or
claim by the Indemnitee under this Agreement, and (ii) within thirty (30) days
of each written request therefor. If it is determined pursuant to the
methods specified in Section 3(f) hereof that the Indemnitee is not entitled to
indemnification, payment or defense under this Agreement or if the Indemnitee is
not successful in enforcing this Agreement against the Company, then the
Indemnitee shall reimburse the Company in accordance with Section 3(d) hereof
for the attorneys’ fees, costs and expenses so paid by the
Company. If it is determined pursuant to Section 3(f) that the
Indemnitee is entitled to only a portion of the Losses or Expenses for which he
is seeking indemnification, payment or defense under this Agreement, then the
Company shall not pay all of the Indemnitee’s attorneys’ fees, costs and
expenses incurred in connection with his enforcement of this Agreement but shall
instead be obligated to pay only the Indemnitee’s total attorneys’ fees, costs
and expenses multiplied by a fraction whereby the numerator equals the amount
the Company is ultimately required to indemnify or pay the Indemnitee under this
Agreement and the denominator equals the total amount sought under this
Agreement by the Indemnitee.
12. Confidential
Information and Non-Disclosure. The Indemnitee
hereby covenants and agrees (i) to maintain all Confidential Information (as
hereinafter defined) as strictly confidential, and (ii) not to discuss, disclose
or deliver any of the Confidential Information with or to any party other than
any person who at present or in the future is a member of the Board of
Directors, a member of the Special Committee, any advisor retained by the
Special Committee, senior management of the Company, or Indemnitee's personal
legal counsel (whom Indemnitee shall instruct to abide by the restrictions of
this Agreement as to any such Confidential Information); provided, however, that
the Indemnitee shall be permitted to discuss, disclose or deliver any
Confidential Information if he is requested or required to do so in connection
with any Claim or any subpoena or other legal process, or in connection with any
action or claim by the Indemnitee to enforce this Agreement so long as the
Indemnitee shall have first provided the Company with written notice of such a
request or requirement so that the
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Company may seek a
protective order or other relief or protection and/or waive in writing the
Indemnitee’s compliance with this Agreement.
For
purposes of this Agreement, the term “Confidential Information” shall mean any
and all information or materials (whether oral, in writing, in electronic
format, on a computer, disk or CD or otherwise) (i) relating or referring to the
business, operations, affairs, products, strategies, strategic plans,
techniques, processes, trade secrets, vendors, suppliers, customers, employees,
balance sheets, statements of earnings, assets, liabilities, sales, revenues,
income, estimates, projections and/or budgets of the Company that are not
available to a person outside of a member of the Board of Directors or senior
management of the Company (other than through a breach of this Agreement), (ii)
that is otherwise not publicly available (other than through a breach of this
Agreement), or (iii) relating or referring to specific details about the
Shareholder Demand; and including, but not limited to, any and all copies,
summaries, extracts, notes and analyses derived from the foregoing or prepared
by the Indemnitee.
In
compliance with the Xxxxx-Xxxxx-Xxxxxx Act, Indemnitee shall not disclose or use
the Nonpublic Personal Information (as hereinafter defined) that Indemnitee
receives from the Company relating to customers of the Company or any affiliate
or subsidiary thereof other than: (i) to carry out the purposes for which the
Company discloses such information to Indemnitee; or (ii) as otherwise permitted
by applicable law.
For
purposed of this Agreement, the term “Nonpublic Personal Information” means
personally identifiable financial information and any list, description, or
other grouping of consumers (and publicly available information pertaining to
them) that is derived using any personally identifiable financial information
that is not publically available. 1 Personally identifiable financial
information means any information (i) a consumer provides to an entity to obtain
a financial product or service from them; (ii) about a consumer resulting from
any transaction involving a financial product or service between an entity and a
consumer; or (iii) an entity otherwise obtains about a consumer in connection
with providing a financial product or service to that consumer.2
Indemnitee
has in place appropriate administrative, technical and physical safeguards; (i)
to insure the security and confidentiality of records and information of
customers of the Company or any affiliate or subsidiary thereof that Indemnitee
receives from the Company; (ii) to protect against any anticipated threats or
hazards to the security or integrity of records and information of customers of
the Company or any affiliate or subsidiary thereof that Indemnitee receives from
the Company; and (iii) to protect against unauthorized access to or use of such
records or information of customers of the Company or any affiliate or
subsidiary thereof that Indemnitee receives from the Company which could result
in substantial harm or inconvenience to a customer of the Company or any
affiliate or subsidiary thereof.
Indemnitee
hereby acknowledges that any records and information of customers of the Company
or any affiliate or subsidiary thereof that Indemnitee receives from the Company
and
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that are not returned, whether in paper, electronic or other format, will be destroyed upon request of the Company in such a manner that Indemnitee cannot practically be read or reconstructed.
Indemnitee
shall provide a full disclosure of any breach in security of Indemnitee’s
premises or systems that result in an unauthorized intrusion into information of
customers of the Company or any affiliate or subsidiary thereof that Indemnitee
receives from the Company and that is maintained by Indemnitee as soon as
possible after the occurrence of the unauthorized access.
13. Miscellaneous.
(a) Binding Effect;
Assignment. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by or against the Company and the Indemnitee, as
well as the Company’s successors, assigns and legal representatives and the
Executive’s spouse, heirs, executors, estate and legal
representatives. The Company shall not effect any sale, merger,
consolidation, share exchange, combination or reorganization unless the
surviving entity agrees in writing to assume all of the Company’s obligations
under this Agreement. Neither the Company nor any shareholders of the
Company shall do any act or thing in an effort to or with the result of having
or causing the Company or any successor or assign to avoid any of the
obligations of the Company under this Agreement.
(b) Waiver. Either
party hereto may, by a writing signed by the waiving party, waive the
performance by the other party of any of the covenants or agreements to be
performed by such other party under this Agreement. The waiver by
either party hereto of a breach of or noncompliance with any provision of this
Agreement shall not operate or be construed as a continuing waiver or a waiver
of any other or subsequent breach or noncompliance hereunder. The
failure or delay of either party at any time to insist upon the strict
performance of any provision of this Agreement or to enforce its rights or
remedies under this Agreement shall not be construed as a waiver or
relinquishment of the right to insist upon strict performance of such provision,
or to pursue any of its rights or remedies for any breach hereof, at a future
time.
(c) Amendment. This
Agreement may be amended, modified or supplemented only by a writing executed by
all of the parties hereto.
(d) Headings. The
headings in this Agreement have been inserted solely for ease of reference and
shall not be considered in the interpretation or construction of this
Agreement.
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(e) Severability. In
case any one or more of the provisions (or any portion thereof) contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement, but this Agreement shall be construed as if
such invalid, illegal or unenforceable provision or provisions (or portion
thereof) had never been contained herein; provided, however, that if any
provision (or any portion thereof) of this Agreement shall be determined by a
court of competent jurisdiction to be unenforceable, then such provision shall
be considered divisible and the court making such determination shall have the
power to reduce, limit or reform (but not increase or make greater) such
provision to make it enforceable to the maximum extent permitted by law, and
such provision shall then be enforceable against the appropriate party hereto in
its reformed, reduced or limited form.
(f) Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but such counterparts shall together constitute one and the same
agreement.
(g) Construction. This
Agreement shall be deemed to have been drafted by both parties
hereto. This Agreement shall be construed in accordance with the fair
meaning of its provisions and its language shall not be strictly construed
against, nor shall ambiguities be resolved against, either party.
(h) Review and
Consultation. The Indemnitee hereby acknowledges and agrees
that he (i) has read this Agreement in its entirety prior to executing it, and
(ii) understands the provisions and effects of this Agreement. THE INDEMNITEE HEREBY UNDERSTANDS,
ACKNOWLEDGES AND AGREES THAT HE HAS NOT RECEIVED ANY ADVICE, COUNSEL OR
RECOMMENDATION WITH RESPECT TO THIS AGREEMENT FROM THE COMPANY, ANY DIRECTOR,
OFFICER OR EMPLOYEE OF THE COMPANY OR ANY ATTORNEY, ACCOUNTANT OR ADVISOR FOR
THE COMPANY.
(i) Entire
Agreement. This Agreement constitutes the entire understanding
and agreement between the parties hereto relating to the subject matter hereof
and supersedes all other prior understandings, commitments, representations,
contracts and agreements, whether oral or written, between the parties hereto
relating to the matters contemplated hereby, other than the Company’s Articles
of Incorporation and By-Laws and applicable law.
(j) Certain
References. Whenever in this Agreement a singular word is
used, it also shall include the plural wherever required by the context and
vice-versa. All references to the masculine, feminine or neuter
genders herein shall include any other gender, as the context
requires. Unless expressly provided otherwise, all references in this
Agreement to days shall mean calendar, not business, days.
(k) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana, without reference to any
choice of law provisions, principles or rules thereof (whether of the State of
Indiana or any other jurisdiction) that would cause the application of any laws
of any jurisdiction other than the State of Indiana.
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(l) Notices. All
notices, requests and other communications under this Agreement shall be in
writing (which shall include facsimile communication) and shall be deemed to
have been duly given if (i) delivered by hand; (ii) sent by certified United
States Mail, return receipt requested, first class postage pre-paid; (iii) sent
by overnight delivery service; or (iv) sent by facsimile transmission if such
fax is confirmed immediately thereafter by also mailing a copy of such notice,
request or other communication by regular (not certified or registered) United
States Mail, first class postage pre-paid, as follows:
|
If
to the Company:
|
CFS
Bancorp, Inc.
|
| Attention: Xxxxxx X. Xxxxxx, Chairman | |
| 000 Xxxxx Xxxx | |
| Xxxxxxx, Xxxxxxx 00000 | |
| Telephone: (000) 000-0000 | |
| Facsimile: (000) 000-0000 |
|
If
to the Indemnitee:
|
Xxxxxxxx
X. Xxxxxx
|
|
|
|
| Telephone: | |
| Facsimile: |
or to
such other address or facsimile number as either party hereto may have furnished
to the other in writing in accordance herewith. Each party shall
promptly provide any changes to its or his address, telephone number and
facsimile number to the other.
All such
notices, requests and other communications shall be effective (i) if delivered
by hand, when delivered; (ii) if sent by mail in the manner provided herein, two
(2) business days after deposit with the United States Postal Service; (iii) if
sent by overnight delivery service, on the next business day after deposit with
such service; or (iv) if sent by facsimile transmission, on the date indicated
on the fax confirmation page of the sender if such fax also is confirmed by mail
in the manner provided herein.
(m) Jurisdiction and
Venue. The parties hereto hereby agree that all demands,
claims, actions, causes of action, suits, proceedings and litigation between or
among the parties relating to this Agreement, shall be filed, tried and
litigated only in a federal or state court located in Lake County,
Indiana. In connection with the foregoing, the parties hereto
irrevocably consent to the jurisdiction and venue of such court and expressly
waive any claims or defenses of lack of jurisdiction of or proper venue by such
court.
(n) Recitals. The
recitals, premises and “Whereas” clauses contained on page 1 of this Agreement
are expressly incorporated into and made a part of this Agreement.
* * *
IN
WITNESS WHEREOF, the parties hereto have entered into, executed and delivered
this Agreement as of the day and year first above written.
/s/ Xxxxxxxx X.
Xxxxxx
Xxxxxxxx X. Xxxxxx
CFS
BANCORP, INC.
By: /s/ Xxxxxx X.
Xxxxxx
Xxxxxx X. Xxxxxx, Chairman
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