IRWIN FINANCIAL
CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
Amended and Restated
Effective January 1, 2005
IRWIN FINANCIAL CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
FOR [NAMED EXECUTIVE]
The purpose of the
Plan is to provide [NAMED EXECUTIVE], upon his retirement, and his
beneficiary under the Irwin Financial Corporation Employees’
Pension Plan (the “Pension Plan”), with the amount of
company-provided benefits that are not provided under the Pension
Plan due to the limitations imposed by Sections 415 and
401(a)(17) of the Internal Revenue Code. This Plan was originally
effective with the approval of the Irwin Financial Corporation
Board of Directors on April 25, 2002.
The Plan shall be
frozen effective December 31, 2004 to provide that no further
benefits shall accrue, be earned or otherwise vest under the Plan
after December 31, 2004. Further, the Plan shall not be
amended (or otherwise materially modified in any manner that would
subject the Plan to Code Section 409A) with respect to those
Plan benefits accrued or earned by participants and vested as of
December 31, 2004 and including actual or deemed interest
accumulations or increases in the present value of the
December 31, 2004 vested accrued benefits (the “Frozen
Benefits”), and any attempted amendment or purported material
modification with respect to such Frozen Benefits shall be null and
void and of no force or effect. For convenience, the Plan as it
existed as of December 31, 2004 is attached as
Exhibit A.
Effective
simultaneous with the freeze of the portion of the Plan
attributable to the Frozen Benefits, a new deferred compensation
plan identical in all respects to the Plan (the “New
Plan”) is hereby adopted to provide for the accrual of
benefits on and after January 1, 2005 in the same manner as
those benefits accrued prior to the freezing of the Plan. The
portion of the Plan attributable to those Plan benefits earned or
accrued by Plan participants as of December 31, 2004 but not
vested as of December 31, 2004 (“Unvested Accrued
Benefits”) shall be treated as part of the New Plan effective
as of January 1, 2005. The New Plan shall be further amended
as hereinafter provided.
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1.1
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Except to the extent otherwise
indicated herein, and except to the extent otherwise inappropriate
in the context, the definitions contained in the Pension Plan are
applicable under this Plan.
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1.2
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“Board of Directors”
means the Board of Directors of Irwin Financial
Corporation.
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1.3
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“Code” means the
Internal Revenue Code of 1986, as amended from time to
time.
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1.4
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“Company” and
“Employer” means Irwin Financial Corporation and any
successor(s) in interest to Irwin Financial Corporation.
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1.5
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“Compensation Committee”
means the Compensation Committee of the Board of Directors of the
Company.
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1.6
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“Disability” means the
Participant: (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
twelve (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 twelve (12) months,
receiving income replacement benefits for a period of not less than
three (3) months under an accident and health plan covering
employees of the Employer.
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1.7
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“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from
time to time.
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1.8
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“Participant” means
[NAMED EXECUTIVE], [TITLE].
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1.9
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“Pension Plan” means the
Irwin Financial Corporation Employees’ Pension Plan, as
amended from time to time.
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1.10
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“Plan” mean this Irwin
Financial Corporation Supplemental Executive Retirement Plan for
[NAMED EXECUTIVE].
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1.11
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“Regular Benefit” means
the amount of pension benefits payable to, or with respect to, the
Participant on account of the Participant’s termination of
employment, or normal, early or late retirement, which would
require payment of pension benefits under the Pension
Plan.
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1.12
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“Supplemental Benefit”
means, to the extent vested and to the extent that such amounts
have not been forfeited pursuant to Section Two below, the
excess, if any, of (i) the accrued benefit which would have
been payable to, or with respect to, a Participant under the
Pension Plan if the amount of such accrued benefit were calculated
without giving effect to the limitations on compensation and
benefits under Code Sections 415 and 401(a)(17), and
(ii) the Participant’s Regular Benefit.
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1.13
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“Separation from
Service” means with respect to a Participant who is not also
a director of the Employer his or her “termination of
employment.” A Participant who is also a director of the
Employer shall incur a “Separation from Service” only
if he both incurs a good faith and complete termination of his
relationship with the Employer as a member of its board of
directors and has a “termination of employment;”
provided, however, that the Participant shall not be required to
have a termination of his relationship as a director if this Plan
is not required to be aggregated with any other nonqualified
deferred compensation plan of the Employer in which the Participant
participates as a director under Section 409A of the Code. For
purposes of this section, a “termination of employment”
means the termination of the individual’s employment with the
Employer for reasons other than death or Disability. Whether a
“termination of employment” takes place is determined
based on the facts and circumstances surrounding the termination of
the individual’s employment. A “termination of
employment” will be considered to have occurred if it is
reasonably anticipated that: (a) the individual will not
perform any services for the Employer (or any entity that is
required to be aggregated with the Employer under Section 414(b) or
414(c) of the Code) after the termination of employment, or
(b) the individual will continue to provide services to the
Employer (or any entity that is required to be aggregated with the
Employer under Section 414(b) or 414(c) of the Code) at an annual
rate that is less than fifty percent (50%) of the bona fide
services rendered during the immediately preceding twelve months of
employment.
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1.14
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“Change in Control”
means:
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(a)
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a
change in the ownership of the Employer, which shall occur on the
date that any one person, or more than one person acting as a
group, acquires ownership of stock of the Employer that, together
with stock held by such person or group, constitutes more than
fifty percent (50%) of the total fair market value or total voting
power of the stock of the Employer. Such acquisition may occur as a
result of a merger of the Employer into another entity which pays
consideration for the shares of capital stock of the Employer in
the merger. However, if any one person, or more than one person
acting as a group, is considered to own more than fifty percent
(50%) of the total fair market value or total voting power of the
stock of the Employer, the acquisition of additional stock by the
same person or persons is not considered
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to cause a
change in the ownership of the Employer (or to cause a change in
the effective control of the Employer (within the meaning of
subsection (b)). An increase in the percentage of stock owned by
any one person, or persons acting as a group, as a result of a
transaction in which the Employer acquires its stock in exchange
for property will be treated as an acquisition of stock for
purposes of this subsection. This subsection applies only when
there is a transfer of stock of the Employer (or issuance of stock
of the Employer) and stock in the Employer remains outstanding
after the transaction.
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(b)
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a
change in the effective control of the Employer, which shall occur
only on either of the following dates:
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(i)
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the
date any one person, or more than one person acting as a group
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 Employer possessing thirty percent (30%)
or more of the total voting power of the stock of the
Employer.
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(ii)
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the
date a majority of members of the Employer’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 Employer’s board of directors before the date
of the appointment or election; provided, however, that this
provision shall not apply if another corporation is a majority
shareholder of the Employer.
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If
any one person, or more than one person acting as a group, is
considered to effectively control the Employer, the acquisition of
additional control of the Employer by the same person or persons is
not considered to cause a change in the effective control of the
Employer (or to cause a change in the ownership of the Employer
within the meaning of subsection (a) of this
section).
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(c)
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a
change in the ownership of a substantial portion of the
Employer’s assets, which shall occur on the date that any one
person, or more than one person acting as a group, 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
Employer that have a total gross fair market value equal to or more
than forty percent (40%) of the total gross fair market value of
all of the assets of the Employer immediately before such
acquisition or acquisitions. For this purpose, gross fair market
value means the value of the assets of the Employer, or the value
of the assets being disposed of, determined without regard to any
liabilities associated with such assets. No change in control event
occurs under this subsection (c) when there is a transfer to
an entity that is controlled by the shareholders of the Employer
immediately after the transfer. A transfer of assets by the
Employer is not treated as a change in the ownership of such assets
if the assets are transferred to —
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(i)
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a
shareholder of the Employer (immediately before the asset transfer)
in exchange for or with respect to its stock;
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(ii)
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an
entity, 50 percent or more of the total value or voting power
of which is owned, directly or indirectly, by the
Employer.
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(iii)
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a
person, or more than one person acting as a group, that owns,
directly or indirectly, 50 percent or more of the total value
or voting power of all the outstanding stock of the Employer;
or
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(iv)
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an
entity, at least 50 percent of the total value or voting power
of which is owned, directly or indirectly, by a person described in
paragraph (iii).
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For
purposes of this subsection (c) and except as otherwise
provided in paragraph (i) above, a person’s status is
determined immediately after the transfer of the assets.
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(d)
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For
purposes of this section, 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. Persons will be considered to be acting as a group
if they are owners of a corporation that enters into a merger,
consolidation, purchase or acquisition of stock, or similar
business transaction with the Employer.
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1.15
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“Specified Employee”
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