DEARBORN SAVINGS ASSOCIATION, F.A.
PLAN AND TRUST AGREEMENT
ESTABLISHMENT OF THE PLAN AND TRUST
1.01 Dearborn Savings Association, F.A. (the "Savings Association")
hereby establishes a Management Recognition Plan (the "Plan") and Trust (the
"Trust") upon the terms and conditions hereinafter stated in this Management
Recognition Plan and Trust Agreement (the "Agreement").
1.02 The Trustee(s) hereby accept this Trust and agree to hold the
Trust assets existing on the date of this Agreement and all additions and
accretions thereto upon the terms and conditions hereinafter stated.
PURPOSE OF THE PLAN
2.01 The purpose of the Plan is to retain personnel of experience and
ability in key positions by providing such key employees of the Savings
Association and any Subsidiaries with a proprietary interest in the Savings
Association as compensation for their contributions to the Savings Association
and any Subsidiaries and as an incentive to make such contributions in the
The following words and phrases when used in this Agreement with an
initial capital letter, unless the context clearly indicates otherwise, shall
have the meanings set forth below. Wherever appropriate, the masculine pronouns
shall include the feminine pronouns and the singular shall include the plural.
3.01 "Beneficiary" means the person or persons designated by a
Recipient to receive any benefits payable under the Plan in the event of such
Recipient's death. Such person or persons shall be designated in writing on
forms provided for this purpose by the Committee and may be changed from time to
time by similar written notice to the Committee. In the absence of a written
designation, the Beneficiary shall be the Recipient's surviving spouse, if any,
or if none, his estate.
3.02 "Board" means the Board of Directors of the Savings Association.
3.03 "Code" means the Internal Revenue Code of 1986, as amended.
3.04 "Committee" means the committee appointed by the Board pursuant to
Article IV hereof.
3.05 "Common Stock" means shares of the common stock, $.10 par value
per share, of the Savings Association.
3.06 "Disability" means any physical or mental impairment which
qualifies an Employee for disability benefits under the applicable long-term
disability plan maintained by the Savings Association or any Subsidiary or, if
no such plan applies, which would qualify such Employee for disability benefits
under the Federal Social Security System.
3.07 "Effective Date" means the hour and day upon which Common Stock is
initially sold by the Savings Association in the Offering.
3.08 "Employee" means any person who is employed by the Savings
Association or any Subsidiary, including officers or other employees who may be
directors of the Savings Association.
3.09 "Exchange Act" means the Securities Exchange Act of 1934, as
3.10 "Offering" means the offering of Common Stock to the public
pursuant to the Stock Issuance Plan adopted by the Savings Association following
the reorganization of Dearborn Savings Association, F.A. into the mutual holding
company form of organization.
3.11 "Plan Shares" or "Shares" means shares of Common Stock held in the
Trust which may be distributed to a Recipient pursuant to the Plan.
3.12 "Plan Share Award" or "Award" means a right granted under this
Plan to receive a distribution of Plan Shares upon completion of the service
requirements described in Article VII.
3.13 "Recipient" means an Employee who receives a Plan Share Award
under the Plan.
3.14 "Retirement" means a termination of employment upon or after
attainment of age sixty-five (65) or such earlier age as may be specified in
applicable plans or policies of the Savings Association or in a Recipient's Plan
3.15 "Subsidiary" means any subsidiaries of the Savings Association
which, with the consent of the Board, agree to participate in this Plan.
3.16 "Trustee" or "Trustees" means those person or persons (which may
be members of the Committee), or firm or other entity, nominated by the
Committee and approved by the Board pursuant to Sections 4.01 and 4.02 to hold
legal title to the Plan assets for the purposes set forth herein.
ADMINISTRATION OF THE PLAN
4.01 Role of the Committee. The Plan shall be administered and
interpreted by the Committee, which shall consist of two or more members of the
Board, none of whom shall be an officer or employee of the Savings Association
and each of whom shall be a "disinterested person" within the meaning of Rule
16b-3 under the Exchange Act. The Committee shall have all of the powers
allocated to it in this and other Sections of the Plan. The interpretation and
construction by the Committee of any provisions of the Plan or of any Plan Share
Award granted hereunder shall be final and binding. The Committee shall act by
vote or written consent of a majority of its members. Subject to the express
provisions and limitations of the Plan, the Committee may adopt such rules,
regulations and procedures as it deems appropriate for the conduct of its
affairs. The Committee shall report its actions and decisions with respect to
the Plan to the Board at appropriate times, but in no event less than one time
per calendar year. The Committee shall recommend to the Board one or more
persons (which may be from among its members), or a firm or other entity, to act
as Trustee(s) in accordance with the provisions of this Plan and Trust and the
terms of Article VIII hereof.
4.02 Role of the Board. The members of the Committee and the Trustee or
Trustees shall be appointed or approved by, and will serve at the pleasure of,
the Board. The Board may in its discretion from time to time remove members
from, or add members to, the Committee, and may remove, replace or add Trustees,
provided that any directors who are selected as members of the Committee shall
not be officers or employees of the Savings Association and shall be
"disinterested persons" within the meaning of Rule 16b-3 promulgated under the
4.03 Limitation on Liability. No member of the Board or the Committee
shall be liable for any determination made in good faith with respect to the
Plan or any Plan Shares or Plan Share Awards granted under it. If a member of
the Board or the Committee is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of anything done or not
done by him in such capacity under or with respect to the Plan, the Savings
Association shall, subject to the requirements of applicable laws and
regulations, indemnify such member against all liabilities and expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner
he reasonably believed to be in the best interests of the Savings Association
and any Subsidiaries and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful.
4.04 Compliance with Laws and Regulations. All awards granted hereunder
shall be subject to all applicable federal and state laws, rules and regulations
and to such approvals by any government or regulatory agency or stockholders as
may be required.
5.01 Amount and Timing of Contributions. The Board shall determine the
amount (or the method of computing the amount) and timing of any contributions
by the Savings Association and any Subsidiaries to the Trust established under
this Plan. Such amounts may be paid in cash or in shares of Common Stock and
shall be paid to the Trust at the designated time of contribution. No
contributions by Employees shall be permitted.
5.02 Investment of Trust Assets; Number of Plan Shares. Subject to
Section 8.02 hereof, the Trustees shall invest all of the Trust's assets
primarily in Common Stock. The aggregate number of Plan Shares initially
available for distribution pursuant to this Plan, subject to adjustment as
provided in Section 9.01 hereof, shall be equal to 3.0% of the shares of Common
Stock which are issued by the Savings Association in the Offering (rounded down
to the nearest whole number), which shares shall be purchased by the Trust in
such Offering with funds contributed by the Savings Association. Subsequent to
consummation of the Offering, the Trust may purchase (from the Savings
Association and/or stockholders thereof) additional shares of Common Stock for
distribution pursuant to this Plan.
6.01 Eligibility. Plan Share Awards may be made to such Employees as
may be selected by the Committee. In selecting those Employees to whom Plan
Share Awards may be granted and the number of Shares covered by such Awards, the
Committee shall consider the position and responsibilities of the eligible
Employees, the value of their services to the Savings Association and any
Subsidiaries, and any other factors the Committee may deem relevant. The
Committee may but shall not be required to request the written recommendation of
the Chief Executive Officer of the Savings Association other than with respect
to Plan Share Awards to be granted to him.
6.02 Form of Allocation. As promptly as practicable after a
determination is made pursuant to Section 6.01 that a Plan Share Award is to be
issued, the Committee shall notify
the Recipient in writing of the grant of the Award, the number of Plan Shares
covered by the Award, and the terms upon which the Plan Shares subject to the
Award shall be distributed to the Employee. Such terms shall be reflected in a
written agreement with the Employee. The date on which the Committee so notifies
the Recipient shall be considered the date of grant of the Plan Share Award. The
Committee shall maintain records as to all grants of Plan Share Awards under the
6.03 Allocations Not Required to any Specific Employee. Notwithstanding
anything to the contrary in Section 6.01 hereof, no Employee shall have any
right or entitlement to receive a Plan Share Award hereunder, such Awards being
at the total discretion of the Committee.
EARNING AND DISTRIBUTION OF PLAN SHARES; VOTING RIGHTS
7.01 Earning Plan Shares; Forfeitures.
(a) General Rules. Unless the Committee shall specifically
state to the contrary at the time a Plan Share Award is granted, and subject to
the terms hereof, Plan Shares subject to an Award shall be earned by a Recipient
at the rate of twenty percent (20%) of the aggregate number of Shares covered by
the Award as of each annual anniversary of the date of grant of the Award. If
the employment of a Recipient is terminated prior to the fifth (5th) annual
anniversary of the date of grant of a Plan Share Award for any reason (except as
specifically provided in subsections (b), (c) and (d) below), the Recipient
shall forfeit the right to any Shares subject to the Award which have not
theretofore been earned. No fractional shares shall be distributed pursuant to
(b) Exception for Terminations Due to Death, Disability and
Retirement. Notwithstanding the general rule contained in Section 7.01(a), all
Plan Shares subject to a Plan Share Award held by a Recipient whose employment
with the Savings Association or any Subsidiary terminates due to death,
Disability or Retirement, shall be deemed earned as of the Recipient's last day
of employment with the Savings Association or any Subsidiary and shall be
distributed as soon as practicable thereafter; provided, however, that no Awards
shall be distributed prior to six months from the date of grant of the Plan
(c) Exception for Terminations after a Change in Control.
Notwithstanding the general rule contained in Section 7.01(a), all Plan Shares
subject to a Plan Share Award held by a Recipient shall be deemed to be earned
in the event of a "change in control of the Savings Association". A "change in
control of the Savings Association" for this purpose shall mean a change in
control as defined under 12 C.F.R. Part 574 or any successor thereto.
(d) Revocation for Misconduct. Notwithstanding anything
hereinafter to the contrary, the Board may by resolution immediately revoke,
rescind and terminate any Plan Share Award, or portion thereof, previously
awarded under this Plan, to the extent Plan Shares have not been distributed
hereunder to the Recipient, whether or not yet earned, in the case of an
Employee who is discharged from the employ of the Savings Association or any
Subsidiary for cause (as hereinafter defined). Termination of employment for
cause shall include termination because of the Employee's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, or willful violation of
any law, rule, or regulation (other than traffic violations or similar offenses)
or final cease-and-desist order.
7.02 Distribution of Dividends. Any cash dividends or stock dividends
declared in respect of each Plan Share held by the Trust will be paid by the
Trust, as soon as practicable after the Trust's receipt thereof, to the
Recipient on whose behalf such Plan Share is then held by the Trust.
7.03 Distribution of Plan Shares.
(a) Timing of Distributions: General Rule. Plan Shares shall
be distributed to a Recipient or his Beneficiary, as the case may be, as soon as
practicable after they have been earned, provided, however, that no Plan Shares
shall be distributed to a Recipient or Beneficiary pursuant to a Plan Share
Award within six months from the date on which that Plan Share Award was granted
to such person.
(b) Form of Distributions. All Plan Shares, together with any
Shares representing stock dividends, shall be distributed in the form of Common
Stock. One share of Common Stock shall be given for each Plan Share earned and
distributable. Payments representing cash dividends shall be made in cash.
(c) Withholding. The Trustees may withhold from any cash
payment or Common Stock distribution made under this Plan sufficient amounts to
cover any applicable withholding and employment taxes, and if the amount of a
cash payment is insufficient, the Trustees may require the Recipient or
Beneficiary to pay to the Trustees the amount required to be withheld as a
condition of delivering the Plan Shares. The Trustees shall pay over to the
Savings Association or any Subsidiary which employs or employed such Recipient
any such amount withheld from or paid by the Recipient or Beneficiary.
(d) Restrictions on Selling of Plan Shares. Plan Share Awards
may not be sold, assigned, pledged or otherwise disposed of prior to the time
that they are earned and distributed pursuant to the terms of this Plan.
Following distribution, the Committee may require the Recipient or his
Beneficiary, as the case may be, to agree not to sell or
otherwise dispose of his distributed Plan Shares except in accordance with all
then applicable Federal and state securities laws, and the Committee may cause a
legend to be placed on the stock certificate(s) representing the distributed
Plan Shares in order to restrict the transfer of the distributed Plan Shares for
such period of time or under such circumstances as the Committee, upon the
advice of counsel, may deem appropriate.
7.04 Voting of Plan Shares. After a Plan Share Award has been made, the
Recipient shall be entitled to direct the Trustees as to the voting of the Plan
Shares which are covered by the Plan Share Award and which have not yet been
earned and distributed to him pursuant to Section 7.03, subject to rules and
procedures adopted by the Committee for this purpose. All shares of Common Stock
held by the Trust as to which Recipients have not directed the voting shall be
voted by the Trustees as the Committee in its discretion shall direct.
8.01 Trust. The Trustees shall receive, hold, administer, invest and
make distributions and disbursements from the Trust in accordance with the
provisions of the Plan and Trust and the applicable directions, rules,
regulations, procedures and policies established by the Committee pursuant to
8.02 Management of Trust. It is the intent of this Plan and Trust that
the Trustees shall have complete authority and discretion with respect to the
arrangement, control and investment of the Trust, and that the Trustees shall
invest all assets of the Trust in Common Stock to the fullest extent
practicable, except (i) to the extent that the Trustees determine that the
holding of monies in cash or cash equivalents is necessary to meet the
obligations of the Trust and (ii) contributions to the Trust by the Savings
Association prior to the Offering may be temporarily invested in such
interest-bearing account or accounts as the Trustees shall determine to be
appropriate. In performing their duties, the Trustees shall have the power to do
all things and execute such instruments as may be deemed necessary or proper,
including the following powers:
(a) To invest up to one hundred percent (100%) of all Trust
assets in Common Stock without regard to any law now or hereafter in force
limiting investments for trustees or other fiduciaries. The investment
authorized herein may constitute the only investment of the Trust, and in making
such investment, the Trustees are authorized to purchase Common Stock from the
Savings Association or from any other source, and such Common Stock so purchased
may be outstanding, newly issued, or treasury shares.
(b) To invest any Trust assets not otherwise invested in
accordance with (a) above, in such deposit accounts, and certificates of
deposit, obligations of the United
States Government or its agencies or such other investments as shall be
considered the equivalent of cash.
(c) To sell, exchange or otherwise dispose of any property at
any time held or acquired by the Trust.
(d) To cause stocks, bonds or other securities to be
registered in the name of a nominee, without the addition of words indicating
that such security is an asset of the Trust (but accurate records shall be
maintained showing that such security is an asset of the Trust).
(e) To hold cash without interest in such amounts as may in
the opinion of the Trustees be reasonable for the proper operation of the Plan
(f) To employ brokers, agents, custodians, consultants and
(g) To hire counsel to render advice with respect to their
rights, duties and obligations hereunder, and such other legal services or
representation as they may deem desirable.
(h) To hold funds and securities representing the amounts to
be distributed to a Recipient or his Beneficiary as a consequence of a dispute
as to the disposition thereof, whether in a segregated account or held in common
with other assets of the Trust.
Notwithstanding anything herein contained to the contrary, the Trustees
shall not be required to make any inventory, appraisal or settlement or report
to any court, or to secure any order of court for the exercise of any power
herein contained, or give bond.
8.03 Records and Accounts. The Trustees shall maintain accurate and
detailed records and accounts of all transactions of the Trust, which shall be
available at all reasonable times for inspection by any legally entitled person
or entity to the extent required by applicable law, or any other person
determined by the Committee.
8.04 Expenses. All costs and expenses incurred in the operation and
administration of this Plan shall be borne by the Savings Association.
8.05 Indemnification. Subject to the requirements of applicable laws
and regulations, the Savings Association shall indemnify, defend and hold the
Trustees harmless against all claims, expenses and liabilities arising out of or
related to the exercise of the Trustees' powers and the discharge of their
duties hereunder, unless the same shall be due to their gross negligence or
9.01 Adjustments for Capital Changes. The aggregate number of Plan
Shares available for distribution pursuant to the Plan Share Awards and the
number of Shares to which any Plan Share Award relates shall be proportionately
adjusted for any increase or decrease in the total number of outstanding shares
of Common Stock issued subsequent to the effective date of the Plan resulting
from any split, subdivision or consolidation of shares or other capital
adjustment, or other increase or decrease in such shares effected without
receipt or payment of consideration by the Savings Association.
9.02 Amendment and Termination of Plan. The Board may, by resolution,
at any time amend or terminate the Plan, subject to any required stockholder
approval or any stockholder approval which the Board may deem to be advisable
for any reason, such as for the purpose of obtaining or retaining any statutory
or regulatory benefits under tax, securities or other laws or satisfying any
applicable stock exchange listing requirements. The Board may not, without the
consent of the holder of a Plan Share Award, alter or impair any Plan Share
Award previously granted under this Plan as specifically authorized herein. Upon
termination of the Plan, all Plan Share Awards shall be distributed to the
Recipients regardless of whether or not such Plan Share Awards had otherwise
been earned under the service requirements set forth in Article VII; provided,
however, that no Awards shall be distributed prior to six months from the date
of grant of the Plan Share Award.
9.03 Nontransferable. Plan Share Awards and rights to Plan Shares shall
not be transferable by a Recipient, and during the lifetime of the Recipient,
Plan Shares may only be earned by and paid to a Recipient who was notified in
writing of an Award by the Committee pursuant to Section 6.02. No Recipient or
Beneficiary shall have any right in or claim to any assets of the Plan or Trust,
nor shall the Savings Association or any Subsidiary be subject to any claim for
9.04 Employment Rights. Neither the Plan nor any grant of a Plan Share
Award or Plan Shares hereunder nor any action taken by the Trustees, the
Committee or the Board in connection with the Plan shall create any right on the
part of any Employee to continue in the employ of the Savings Association or any
9.05 Voting and Dividend Rights. No Recipient shall have any voting or
dividend rights or other rights of a stockholder in respect of any Plan Shares
covered by a Plan Share Award, except as expressly provided in Sections 7.02 and
7.04 above, prior to the time said Plan Shares are actually earned and
distributed to him.
9.06 Governing Law. To the extent not governed by Federal law, the Plan
and Trust shall be governed by the laws of the State of Indiana.
9.07 Effective Date. This Plan shall be effective as of the Effective
Date, and Awards may be granted hereunder as of or after the Effective Date and
as long as the Plan remains in effect.
9.08 Term of Plan. This Plan shall remain in effect until the earlier
of (1) ten (10) years from the Effective Date, (2) termination by the Board, or
(3) the distribution to Recipients and Beneficiaries of all assets of the Trust.
9.09 Tax Status of Trust. It is intended that the trust established
hereby be treated as a Grantor Trust of the Savings Association under the
provisions of Section 671 et seq. of the Code, as the same may be amended from
time to time.
IN WITNESS WHEREOF, the Savings Association has caused this Agreement
to be executed by its duly authorized officers and the corporate seal to be
affixed and duly attested, and the initial Trustees of the Trust established
pursuant hereto have duly and validly executed this Agreement, all on this __
day of ________ 1993.
Margaret M. Abner Donald C. Siemers
Secretary President and Chief Executive