DEARBORN SAVINGS ASSOCIATION, F.A.
DIRECTORS'
RETIREMENT PLAN
Lawrenceburg, Indiana
August 1, 2005
DIRECTORS' RETIREMENT PLAN
This Directors' Retirement Plan (the "Plan"), effective as of the 1st day
of August 2005, formalizes the understanding by and between Dearborn Savings
Association, F.A. (the "Bank"), a federal stock savings association, and its
directors, hereinafter referred to as "Director(s)", who shall be eligible to
participate in this Plan by execution of a Directors' Retirement Plan Joinder
Agreement ("Joinder Agreement") in a form provided by the Bank.
W I T N E S S E T H :
WHEREAS, the Directors serve the Bank as members of the Board of Directors;
and
WHEREAS, the Bank desires to honor, reward and recognize the Directors who
have provided long and faithful service to the Bank and to ensure the continued
service on the Board by such Directors until retirement age; and
WHEREAS, Director Xxxxx Xxxxx has elected not to participate in the Plan
and, accordingly, will not execute a Joinder Agreement indicating his desire to
participate hereunder; and
WHEREAS, the Directors wish to be assured that they will be entitled to a
certain amount of additional compensation for some definite period of time from
and after retirement from active service with the Bank or other termination of
service and wish to provide their beneficiaries with benefits after their death;
and
WHEREAS, the Bank and the Directors wish to provide the terms and
conditions upon which the Bank shall pay such additional compensation to the
Directors after retirement or other termination of service and/or death benefits
to their beneficiaries after death; and
WHEREAS, the Bank and the Directors intend this Plan to be considered an
unfunded arrangement, maintained primarily to provide supplemental retirement
income for such Directors; and
WHEREAS, the Bank has adopted this Directors' Retirement Plan which
controls all issues relating to Retirement Benefits as described herein and
which supersedes and replaces the Directors Emeritus Program previously adopted
by the Bank; and
WHEREAS, Section 409A of the Internal Revenue Code of 1986, as amended
("Code"), requires that certain types of deferred compensation arrangements
comply with its terms or be subject to current taxes and penalties.
NOW, THEREFORE, in consideration of the premises and of the mutual promises
herein contained, the Bank and the Directors agree as follows:
SECTION I
DEFINITIONS
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When used herein, the following words and phrases shall have the meanings
below unless the context clearly indicates otherwise:
1.1 "Accrued Benefit" means that portion of the Retirement Benefit which is
required to be expensed and accrued under generally accepted accounting
principles (GAAP) by any appropriate method which the Bank's Board of
Directors may require in the exercise of its sole discretion.
1.2 "Act" means the Employee Retirement Income Security Act of 1974, as amended
from time to time.
1.3 "Administrator" means the Bank.
1.4 "Bank" means Dearborn Savings Association, F.A. and any successor thereto.
1.5 "Beneficiary" means the person or persons (and their heirs) designated as
Beneficiary in the Director's Joinder Agreement to whom the deceased
Director's benefits are payable. If no Beneficiary is so designated, then
the Director's Spouse, if living, will be deemed the Beneficiary. If the
Director's Spouse is not living, then the Children of the Director will be
deemed the Beneficiaries and will take on a per stirpes basis. If there are
no living Children, then the Estate of the Director will be deemed the
Beneficiary.
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1.6 "Benefit Age" shall be the birthday on which the Director becomes eligible
to receive the Retirement Benefit under the Plan. Such birthday shall be
designated in the Director's Joinder Agreement.
1.7 "Benefit Eligibility Date" shall be the date on which a Director is
entitled to receive his Retirement Benefit. A Director's "Benefit
Eligibility Date" shall occur on the 1st day of the month coincident with
or next following the month in which the Director attains his Benefit Age
designated in the Joinder Agreement.
1.8 "Cause" means personal dishonesty, willful misconduct, willful malfeasance,
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), or final
cease-and-desist order, material breach of any provision of this Plan, or
gross negligence in matters of material importance to the Bank.
1.9 "Change in Control" shall mean (i) a change in ownership of the Bank under
paragraph (a) below, or (ii) a change in effective control of the Bank
under paragraph (b) below, or (iii) a change in the ownership of a
substantial portion of the assets of the Bank under paragraph (c) below:
(a) Change in the ownership of the Bank. A change in the ownership of
the Bank shall occur on the date that any one person, or more
than one person acting as a group (as defined in paragraph (b)),
acquires ownership of stock of the corporation that, together
with stock held by such person or group, constitutes more than 50
percent of the total fair market value or total voting power of
the stock of such corporation. However, if any one person or more
than one person acting as a group, is considered to own more than
50 percent of the total fair market value or total voting power
of the stock of a corporation, the acquisition of additional
stock by the same person or persons is not considered to cause a
change in the ownership of the corporation (or to cause a change
in the effective control of the corporation (within the meaning
of paragraph (b) below). An increase in the percentage of stock
owned by any one person, or persons acting as a
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group, as a result of a transaction in which the corporation
acquires its stock in exchange for property will be treated as an
acquisition of stock for purposes of this section. This paragraph
(a) applies only when there is a transfer of stock of a
corporation (or issuance of stock of a corporation) and stock in
such corporation remains outstanding after the transaction.
(b) Change in the effective control of the Bank. A change in the
effective control of the Bank shall occur on the date that either
(i) any one person, or more than one person acting as a group (as
determined below), acquires (or has acquired during the 12-month
period ending on the date of the most recent acquisition by such
person or persons) ownership of stock of the corporation
possessing 35 percent or more of the total voting power of the
stock of such corporation; or (ii) a majority of members of the
corporation's board of directors is replaced during any 12-month
period by directors whose appointment or election is not endorsed
by a majority of the members of the corporation's board of
directors prior to the date of the appointment or election,
provided that for purposes of this paragraph (b)(ii), the term
corporation refers solely to a corporation for which no other
corporation is a majority shareholder. In the absence of an event
described in paragraph (i) or (ii), a change in the effective
control of a corporation will not have occurred. If any one
person, or more than one person acting as a group, is considered
to effectively control a corporation (within the meaning of this
paragraph (b)), the acquisition of additional control of the
corporation by the same person or persons is not considered to
cause a change in the effective control of the corporation (or to
cause a change in the ownership of the corporation within the
meaning of paragraph (a)). Persons will not be considered to be
acting as a group solely because they purchase or own stock of
the same corporation at the same time, or as a result of the same
public offering.
(c) Change in the ownership of a substantial portion of the Bank's
assets. A change in the ownership of a substantial portion of the
Bank's assets
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shall occur on the date that any one person, or more than one
person acting as a group (as determined below), acquires (or has
acquired during the 12-month period ending on the date of the
most recent acquisition by such person or persons) assets from
the corporation that have a total gross fair market value equal
to or more than 40% of the total gross fair market value of all
of the assets of the corporation immediately prior to such
acquisition or acquisitions. For this purpose, gross fair market
value means the value of the assets of the corporation, or the
value of the assets being disposed of, determined without regard
to any liabilities associated with such assets. There is no
Change in Control event under this paragraph (c) when there is a
transfer to an entity that is controlled by the shareholders of
the transferring corporation immediately after the transfer.
(d) Each of the sub-paragraphs (a) through (c) above shall be
construed and interpreted consistent with the requirements of
Code Section 409A and any Treasury regulations or other guidance
issued thereunder.
1.10 "Children" means the Director's children, or the issue of any deceased
Children, then living at the time payments are due the Children under this
Plan. The term "Children" shall include both natural and adopted Children.
1.11 "Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the rules and regulations promulgated thereunder.
1.12 "Company" means DSA Financial Corporation, the stock holding company parent
of the Bank.
1.13 "Disability" means any case in which a Director: (i) is unable to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or
can be expected to last for a continuous period of not less than 12 months,
or (ii) is, by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to
last for a continuous period of not less than 12 months, receiving income
replacement benefits
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for a period of not less than three months under an accident and health
plan covering employees of the Bank.
1.14 "Disability Benefit" means the monthly benefit payable to the Director
following a determination, in accordance with Subsection 3.6, that he is no
longer able, properly and satisfactorily, to perform his duties as
Director.
1.15 "Effective Date" of this Plan shall be August 1, 2005.
1.16 "Estate" means the estate of the Director.
1.17 "Interest Factor" means monthly compounding or discounting, as applicable,
at six and one-half percent (6.5%) per annum.
1.18 "Payout Period" means the time frame during which certain benefits payable
hereunder shall be distributed. Payments shall be made in equal monthly
installments commencing (i) within thirty (30) days following the
occurrence of the event which triggers distribution, or (ii) in the event
the Director is also a Specified Employee and the following is required by
Code Section 409A, as of the first day of the seventh month next following
such Director's Separation from Service, and shall continue thereafter for
a period of One Hundred Twenty (120) consecutive months. For purposes of
the Survivor's Benefits payable hereunder, the Payout Period shall be One
Hundred Twenty (120) consecutive months.
1.19 "Plan Year" shall mean the calendar year.
1.20 "Retirement Benefit" means an annual amount payable to the Director
pursuant to the Plan and set forth in the Director's Joinder Agreement.
1.21 "Separation from Service" shall have the meaning set forth in Code Section
409A and Treasury regulations or other guidance issued by the United States
Treasury Department under Code Section 409A.
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1.22 "Specified Employee" means with respect to a publicly traded company, an
employee of the Bank or Company who is also a "key employee" as such term
is defined in Section 416(i) of the Code, without regard to paragraph 5
thereof.
1.23 "Spouse" means the individual to whom the Director is legally married at
the time of the Director's death.
1.24 "Survivor's Benefit" means an annual amount payable to the Beneficiary in
monthly installments throughout the Payout Period, and subject to
Subsection 3.2.
SECTION II
ESTABLISHMENT OF RABBI TRUST
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The Bank has established a rabbi trust into which the Bank shall contribute
assets which shall be held therein, subject to the claims of the Bank's
creditors in the event of the Bank's "Insolvency" as defined in the plan which
establishes such rabbi trust, until the contributed assets are paid to the
Directors and their Beneficiaries in such manner and at such times as specified
in this Plan. It is the intention of the Bank to make contributions to the rabbi
trust to provide the Bank with a source of funds to assist it in meeting the
liabilities of this Plan. The rabbi trust and any assets held therein shall
conform to the terms of the rabbi trust agreement which has been established in
conjunction with this Plan. To the extent the language in this Plan is modified
by the language in the rabbi trust agreement, the rabbi trust agreement shall
supersede this Plan. Any contributions to the rabbi trust shall be made during
each Plan Year in accordance with the rabbi trust agreement. The amount of such
contribution(s) shall be at least equal to the Director's Accrued Benefit, if
any, less: (i) previous contributions made on behalf of the Director to the
rabbi trust, and (ii) earnings to date on all such previous contributions.
SECTION III
BENEFITS
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3.1 Retirement Benefit. If the Director is in the service of the Bank until
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reaching his Benefit Age, the Director shall be entitled to the Retirement
Benefit. Such Retirement Benefit shall commence within thirty (30) days
following the Director's Separation from Service, provided, however, if the
Director is a Specified Employee, and the following is required
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by the Code Section 409A, such payments shall commence as of the first day
of the seventh month next following the Director's Separation from Service,
and shall be payable in monthly installments throughout the Payout Period.
In the event a Director dies after commencement of the Retirement Benefit
payments but before completion of all such payments due and owing
hereunder, the Bank shall pay to the Director's Beneficiary a continuation
of the monthly installments for the remainder of the Payout Period.
3.2 Death Prior to Benefit Age, Burial Expenses.
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(a) If the Director dies prior to attaining his Benefit Age but while
in the service of the Bank, the Director's Beneficiary shall be
entitled to the Survivor's Benefit. The Survivor's Benefit shall
commence within thirty (30) days of the Director's death and
shall be payable in monthly installments throughout the Payout
Period. The Survivor's Benefit shall be equal to the full
Retirement Benefit, calculated as if the Director had survived
and remained in the service of the Bank until reaching his
Benefit Age.
(b) In addition to any other benefits payable under this Plan, upon
the Director's death, the Director's Beneficiary shall be
entitled to receive a one-time lump sum death benefit in the
amount of Ten Thousand Dollars ($10,000.00). This benefit shall
be provided specifically for the purpose of providing payment for
burial and/or funeral expenses of the Director. Such benefit
shall be payable within thirty (30) days of the Director's death.
The Director's Beneficiary shall not be entitled to such benefit
under this Plan (i) if the Director is removed for Cause prior to
death, or (ii) the Director's Beneficiary receives a supplemental
death benefit for burial expenses of at least $10,000 under any
other non-qualified deferred compensation plan sponsored by the
Bank.
3.3 Voluntary or Involuntary Termination Other Than for Cause.
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(a) If the Director's service with the Bank is voluntarily or
involuntarily terminated prior to the attainment of his Benefit
Eligibility Date, for any reason other than for
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Cause, the Director's death, Disability, or following a Change in
Control, the Director (or his Beneficiary) shall be entitled to
the annuitized value (using the Interest Factor) of (i) his
Accrued Benefit calculated as of the date of his termination of
service, plus (ii) interest accrued on such Accrued Benefit from
the date of termination until his Benefit Age. Such benefit shall
commence on the Director's Benefit Eligibility Date and shall be
payable in monthly installments throughout the Payout Period. In
the event the Director dies at any time after commencement of
payments hereunder, but prior to completion of all such payments
due and owing hereunder, the Bank shall pay to the Director's
Beneficiary a continuation of the monthly installments for the
remainder of the Payout Period.
(b) If the Director dies after his voluntary or involuntary
termination of service occurring prior to his Benefit Eligibility
Date, and prior to the commencement of benefits hereunder, the
Director's Beneficiary shall be entitled to the annuitized value
(using the Interest Factor) of his Accrued Benefit. The payment
of such benefit shall commence within thirty (30) days of the
Director's death. The benefit shall be payable in monthly
installments over the Payout Period.
3.4 Termination of Service Related to a Change in Control.
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(a) If a Change in Control occurs at the Bank, and thereafter the
Director incurs a Separation from Service (either voluntarily or
involuntarily) with or within three (3) years following such
Change in Control, other than due to termination for Cause, the
Director shall be entitled to his full Retirement Benefit (as if
he had remained in the service of the Bank until his Benefit
Age). Such benefit shall commence within thirty (30) days
following his Separation from Service, provided, however, if the
Director is a Specified Employee and the following is required by
Code Section 409A, such payments shall commence as of the first
day of the seventh month next following Director's Separation
from Service, and shall be payable in monthly installments
throughout the Payout Period. In the event that the Director dies
at any time after commencement of the payments, but prior
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to completion of all such payments due and owing hereunder, the
Bank, or its successor, shall pay to the Director's Beneficiary a
continuation of the monthly installments for the remainder of the
Payout Period.
(b) If, after such Separation from Service, the Director dies prior
to commencement of the Retirement Benefit hereunder, the
Director's Beneficiary shall be entitled to the Survivor's
Benefit which shall commence within thirty (30) days of the
Director's death. The Survivor's Benefit shall be payable in
monthly installments over the Payout Period.
3.5 Termination for Cause. If the Director is terminated for Cause, all
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benefits under this Plan shall be forfeited and this Plan shall become null
and void as to the Director.
3.6 Disability Benefit.
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(a) Notwithstanding any other provision hereof, a Director who has
not attained his Benefit Eligibility Date shall be entitled to
receive the Disability Benefit hereunder, in any case in which it
is determined by a duly licensed physician selected by the Bank,
that the Director has incurred a Disability. If the Director's
service is terminated pursuant to this paragraph, the Director
will begin receiving the Disability Benefit in lieu of any
benefit available under Section 3.3, which is not available prior
to the Director's Benefit Eligibility Date. The Disability
Benefit shall equal the Director's Accrued Benefit, annuitized
(using the Interest Factor) over the Payout Period. The
Disability Benefit shall be payable in monthly installments over
the Payout Period commencing within thirty (30) days following
the Director's termination of service. In the event the Director
dies while receiving payments pursuant to this Subsection, but
prior to the completion of all payments due and owing hereunder,
the Bank shall pay to the Director's Beneficiary a continuation
of the monthly installments for the remainder of the Payout
Period.
(b) If the Director dies after it is determined that such Director
has incurred a Disability but before the commencement of such
payments, the Director's
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Beneficiary shall be entitled to the Director's Accrued Benefit
annuitized (using the Interest Factor) over the Payout Period.
Such benefit shall be payable to the Beneficiary in monthly
installments over the Payout Period commencing within thirty (30)
days of the Director's death.
3.7 Non-Competition During and After Service on the Board.
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(a) In order to be eligible for the benefits hereunder the Director
shall not actively engage, either directly or indirectly, in any
business or other activity which is or may be deemed to be in any
way competitive with or adverse to the best interests of the
business of the Bank so long as he remains in the service of the
Bank and for two (2) years following Separation from Service,
unless the Director's participation therein has been consented
to, in writing, by the Board of Directors. In the event a
Director violates this Section 3.7(a) within two (2) years of
termination of service, any benefits being paid to the Director
shall cease being paid unless or until the Director ceases
violation of this Section 3.7(a) upon, and within thirty (30)
days of, written notice from the Board to cease such activity, or
the Director is the successful party in a claims or arbitration
proceeding brought under Section 8.2 hereof.
(b) In order to receive or continue receiving benefits under this
Plan, the Director shall not, without the prior written consent
of the Bank, become associated with, in the capacity of an
employee, director, officer, principal, agent, trustee or in any
other capacity whatsoever, any enterprise conducted in the
trading area of the business of the Bank which enterprise is, or
may be deemed to be, competitive with any business carried on by
the Bank either during service with the Bank or, as of the date
of the termination of the Director's service or his retirement,
for a period of two (2) years following termination of service.
In the event the Director violates this Section 3.7(b), any
benefits being paid to the Director shall cease being paid unless
or until the Director ceases violation of this Section 3.7(b)
upon, and within thirty (30) days of, written notice from the
Board to cease such activity
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or affiliation, or the Director is the successful party in a
claims or arbitration proceeding brought under Section 8.2
hereof.
(c) In the event of a termination of the Director's service related
to a Change in Control pursuant to Subsection 3.4, paragraph (b)
of this Subsection 3.7 shall cease to be a condition to the
performance by the Bank of its obligations under this Plan.
3.8 Breach. In the event of any breach by the Director of the agreements and
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covenants contained herein, the Board of Directors of the Bank shall direct
that any unpaid balance of any payments to the Director under this Plan be
suspended, and shall thereupon notify the Director of such suspensions, in
writing. Thereupon, if the Board of Directors of the Bank shall determine
that said breach by the Director has continued for a period of one (1)
month following notification of such suspension, all rights of the Director
and his Beneficiaries under this Plan, including rights to further payments
hereunder, shall thereupon terminate.
SECTION IV
BENEFICIARY DESIGNATION
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The Director shall make an initial designation of primary and secondary
Beneficiaries upon execution of his Joinder Agreement and shall have the right
to change such designation, at any subsequent time, by submitting to the
Administrator in substantially the form attached as Exhibit A to the Joinder
Agreement, a written designation of primary and secondary Beneficiaries. Any
Beneficiary designation made subsequent to execution of the Joinder Agreement
shall become effective only when receipt thereof is acknowledged in writing by
the Administrator.
SECTION V
DIRECTOR'S RIGHT TO ASSETS
--------------------------
The rights of the Director, any Beneficiary, or any other person claiming
through the Director under this Plan, shall be solely those of an unsecured
general creditor of the Bank. The Director, the Beneficiary, or any other person
claiming through the Director, shall only have the
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right to receive from the Bank those payments so specified under this Plan. The
Director agrees that he, his Beneficiary, or any other person claiming through
him shall have no rights or interests whatsoever in any asset of the Bank,
including any insurance policies or contracts which the Bank may possess or
obtain to informally fund this Plan. Any asset used or acquired by the Bank in
connection with the liabilities it has assumed under this Plan, unless expressly
provided herein, shall not be deemed to be held under any trust for the benefit
of the Director or his Beneficiaries, nor shall any asset be considered security
for the performance of the obligations of the Bank. Any such asset shall be and
remain, a general, unpledged, and unrestricted asset of the Bank.
SECTION VI
RESTRICTIONS UPON FUNDING
-------------------------
The Bank shall have no obligation to set aside, earmark or entrust any fund
or money with which to pay its obligations under this Plan. The Director, his
Beneficiaries or any successor in interest to him shall be and remain simply a
general unsecured creditor of the Bank in the same manner as any other creditor
having a general claim for matured and unpaid compensation. The Bank reserves
the absolute right in its sole discretion to either purchase assets to meet its
obligations undertaken by this Plan or to refrain from the same and to determine
the extent, nature, and method of such asset purchases. Should the Bank decide
to purchase assets such as life insurance, mutual funds, disability policies or
annuities, the Bank reserves the absolute right, in its sole discretion, to
terminate such assets at any time, in whole or in part. At no time shall the
Director be deemed to have any lien, right, title or interest in or to any
specific investment or to any assets of the Bank. If the Bank elects to invest
in a life insurance, disability or annuity policy upon the life of the Director,
then the Director shall assist the Bank by freely submitting to a physical
examination and by supplying such additional information necessary to obtain
such insurance or annuities.
SECTION VII
ALIENABILITY AND ASSIGNMENT PROHIBITION
---------------------------------------
Neither the Director nor any Beneficiary under this Plan shall have any
power or right to transfer, assign, anticipate, hypothecate, mortgage, commute,
modify or otherwise encumber in
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advance any of the benefits payable hereunder, nor shall any of said benefits be
subject to seizure for the payment of any debts, judgments, alimony or separate
maintenance owed by the Director or his Beneficiary, nor be transferable by
operation of law in the event of bankruptcy, insolvency or otherwise. In the
event the Director or any Beneficiary attempts assignment, communication,
hypothecation, transfer or disposal of the benefits hereunder, the Bank's
liabilities shall forthwith cease and terminate.
SECTION VIII
ACT PROVISIONS
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8.1 Named Fiduciary and Administrator. The Bank, as Administrator, shall be the
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"Named Fiduciary" of this Plan, as defined under the Act. As Administrator,
the Bank shall be responsible for the management, control and
administration of the Plan as established herein. The Administrator may
delegate to others certain aspects of the management and operational
responsibilities of the Plan, including the employment of advisors and the
delegation of ministerial duties to qualified individuals.
8.2 Claims Procedure and Arbitration. In the event that benefits under this
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Plan are not paid to the Director (or to his Beneficiary in the case of the
Director's death) or the payment of benefits is curtailed for reasons set
forth in Sections 3.7(a) or 3.7(b) and such claimant feels that he or she
is entitled to receive such benefits, then a written claim must be made to
the Administrator within sixty (60) days from the date payments are
refused. The Bank and its Board of Directors shall review the written claim
and, if the claim is denied, in whole or in part, they shall provide in
writing, within ninety (90) days of receipt of such claim, their specific
reasons for such denial, reference to the provisions of this Plan or the
Joinder Agreement upon which the denial is based, and any additional
material or information necessary to perfect the claim. Such writing by the
Bank and its Board of Directors shall further indicate the additional steps
which must be undertaken by claimants if an additional review of the claim
denial is desired.
If claimants desire a second review, they shall notify the Administrator in
writing within sixty (60) days of the first claim denial. Claimants may
review this Plan, the Joinder Agreement or any documents relating thereto
and submit any issues and comments, in
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writing, they may feel appropriate. In its sole discretion, the
Administrator shall then review the second claim and provide a written
decision within sixty (60) days of receipt of such claim. This decision
shall state the specific reasons for the decision and shall include
reference to specific provisions of this Plan or the Joinder Agreement upon
which the decision is based.
If claimants continue to dispute the benefit denial based upon completed
performance of this Plan and the Joinder Agreement or the meaning and
effect of the terms and conditions thereof, then claimants may submit the
dispute to mediation, administered by the American Arbitration Association
("AAA") (or a mediator selected by the parties) in accordance with the
AAA's Commercial Mediation Rules. If mediation is not successful in
resolving the dispute, it shall be settled by arbitration administered by
the AAA under its Commercial Arbitration Rules, and judgment on the award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
SECTION IX
MISCELLANEOUS
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9.1 No Effect on Director's Rights. Nothing contained herein will confer upon
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the Director the right to be retained in the service of the Bank nor limit
the right of the Bank to deal with the Director without regard to the
existence of the Plan.
9.2 State Law. The Plan is established under, and will be construed according
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to, the laws of the State of Indiana, to the extent such laws are not
preempted by the Act and valid regulations published thereunder.
9.3 Construction and Severability. This Plan is adopted following the enactment
-----------------------------
of Code Section 409A and is intended to be construed consistent with the
requirements of that Section, the Treasury regulations and other guidance
issued thereunder. If any provision of the Plan shall be determined to be
inconsistent therewith for any reason, then the Plan shall be construed, to
the maximum extent possible, to give effect to such provision in a manner
that is consistent with Code Section 409A, and if such construction is not
possible, as if such provision had never been included. In the event that
any of the
15
provisions of this Plan or portion thereof are held to be inoperative or
invalid by any court of competent jurisdiction, then: (1) insofar as is
reasonable, effect will be given to the intent manifested in the provisions
held to be invalid or inoperative, and (2) the invalidity and
enforceability of the remaining provisions will not be affected thereby.
9.4 Incapacity of Recipient. In the event the Director is declared incompetent
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and a conservator or other person legally charged with the care of his
person or Estate is appointed, any benefits under the Plan to which such
Director is entitled shall be paid to such conservator or other person
legally charged with the care of his person or Estate.
9.5 Unclaimed Benefit. The Director shall keep the Bank informed of his current
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address and the current address of his Beneficiaries. The Bank shall not be
obligated to search for the whereabouts of any person. If the location of
the Director is not made known to the Bank as of the date upon which any
payment of any benefits may first be made, the Bank shall delay payment of
the Director's benefit payment(s) until the location of the Director is
made known to the Bank; however, the Bank shall only be obligated to hold
such benefit payment(s) for the Director until the expiration of thirty-six
(36) months. Upon expiration of the thirty-six (36) month period, the Bank
may discharge its obligation by payment to the Director's Beneficiary. If
the location of the Director's Beneficiary is not made known to the Bank by
the end of an additional two (2) month period following expiration of the
thirty-six (36) month period, the Bank may discharge its obligation by
payment to the Director's Estate. If there is no Estate in existence at
such time or if such fact cannot be determined by the Bank, the Director
and his Beneficiary(ies) shall thereupon forfeit any rights to the balance,
if any, of any benefits provided for such Director and/or Beneficiary under
this Plan.
9.6 Limitations on Liability. Notwithstanding any of the preceding provisions
------------------------
of the Plan, no individual acting as an employee or agent of the Bank, or
as a member of the Board of Directors shall be personally liable to the
Director or any other person for any claim, loss, liability or expense
incurred in connection with the Plan.
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9.7 Gender. Whenever in this Plan words are used in the masculine or neuter
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gender, they shall be read and construed as in the masculine, feminine or
neuter gender, whenever they should so apply.
9.8 Effect on Other Corporate Benefit Plans. Nothing contained in this Plan
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shall affect the right of the Director to participate in or be covered by
any other corporate benefit available to Directors of the Bank constituting
a part of the Bank's existing or future compensation structure.
9.9 Suicide. Notwithstanding anything to the contrary in this Plan, the
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benefits otherwise provided herein shall not be payable and this Plan shall
become null and void with respect to the Director if the Director's death
results from suicide, whether sane or insane, within twenty-four (24)
months after the execution of his Joinder Agreement.
9.10 Inurement. This Plan shall be binding upon and shall inure to the benefit
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of the Bank, its successors and assigns, and the Director, his successors,
heirs, executors, administrators, and Beneficiaries.
9.11 Headings. Headings and sub-headings in this Plan are inserted for reference
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and convenience only and shall not be deemed a part of this Plan.
SECTION X
AMENDMENT/REVOCATION
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This Plan shall not be amended, modified or revoked at any time, in
whole or part, as to any Director, without the mutual written consent of the
Director and the Bank, and such mutual consent shall be required even if the
Director is no longer in the service of the Bank.
SECTION XI
EXECUTION
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11.1 This Plan sets forth the entire understanding of the parties hereto with
respect to the transactions contemplated hereby, and any previous
agreements or understandings between the parties hereto regarding the
subject matter hereof are merged into and superseded by this Plan.
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11.2 This Plan shall be executed in triplicate, each copy of which, when so
executed and delivered, shall be an original, but all three copies shall
together constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Bank has caused this Plan to be executed on the
day and date first above written.
ATTEST: DEARBORN SAVINGS ASSOCIATION, F.A.
/s/ Xxxxxx X. Xxxxxxx, Chrm. By: /s/ Xxxxxx Xxxxxxx
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Its: President
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