FIRST AMENDMENT OF
THE NATIONAL BANK OF INDIANAPOLIS CORPORATION
EXECUTIVES’ DEFERRED COMPENSATION
PLAN
WHEREAS, The National Bank of Indianapolis
Corporation (the “Bank”) maintains The National Bank of
Indianapolis Corporation Executives’ Deferred Compensation
Plan (Effective as of January 1, 2005) (the
“Plan”); and
WHEREAS, pursuant to the authority contained in
Section 6.1 of the Plan, the Bank has reserved the right to
amend the Plan; and
WHEREAS, the Bank has determined the Plan should
be amended to comply with Section 409A of the Internal Revenue
Code of 1986, as amended;
NOW, THEREFORE, pursuant to the power reserved
to the Bank under Section 6.1 of the Plan and delegated to the
undersigned individuals, the Plan is hereby amended, effective as
of January 1, 2008, in the following particulars:
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1.
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By replacing the phrase “this
subsection (r)” in subsection 1.4(u) with “this
subsection (u)”.
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2.
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By replacing subsection 3.2(b) in
its entirety with the following:
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“(b)
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Timing of Execution and Delivery of
Elections .
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(i)
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Base Salary Deferrals
. Except as provided
below, to be effective to defer any portion of a
Participant’s Base Salary for a Plan Year, an election must
be filed with the Committee with respect to that Base Salary on or
prior to the first day of that Plan Year.
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(ii)
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Bonus Deferrals
. Except as otherwise
provided in this subsection 3.2(b)(ii), to be effective to defer
any portion of a Participant’s Bonus for a Plan Year, an
election must be filed with the Committee with respect to that
Bonus on or prior to the first day of that Plan Year. However, the
deferral election filing may be delayed until June 30th of the
Plan Year in which the services giving rise to the Bonus are
rendered if (A) the Bonus is not, as of the date of filing,
substantially certain to be paid, and (B) capable of
calculation. In addition, the Participant must be employed by the
Bank from the later of (A) the first day of the Plan Year to
which the election relates, or (B) the date the Bank
establishes the performance goals for the Bonus through the date
the Participant files his or her deferral election. If either of
these requirements are not satisfied, the deferral election must be
filed in accordance with the first sentence of this subsection
3.2(b)(ii).
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For example, a Bonus deferral
election attributable to the 2009 Plan Year, payable in 2010, may
be filed on or before June 30, 2009 so long as the Bonus is
not both substantially certain to be paid and capable of
calculation by that date and provided that the Participant was
employed by the Bank for the requisite time period described above.
If one or both of these requirements is not satisfied, the election
must have been filed not later than December 31,
2008.”
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3.
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By replacing subsection 3.2(c) in
its entirety with the following:
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“(c)
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Revocation and Modification of
Deferral Elections . Once made, a deferral election
cannot be modified in the current Plan Year but rather can only be
modified (and then only in the case of a deferral election with
respect to Base Salary) with respect to a later Plan Year. Such
modification must be made by the time(s) specified in subsection
3.2(b). Modifications must be made on a form or forms prescribed by
the Committee.”
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4.
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By replacing the phrase “as
soon as practicable” in Section 4.2 with the phrase
“within 90 days”.
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IN WITNESS WHEREOF, the Bank, by its duly
authorized officer, and the Executive have executed this First
Amendment of The National Bank of Indianapolis Corporation
Executives’ Deferred Compensation Plan Employment Agreement
this 20th day of November _____, 2008, but effective as of
January 1, 2008.
4
The
National Bank of Indianapolis Corporation
Executives’
Deferred Compensation Plan
Effective Date:
January 1, 2005
5
ADOPTION OF
THE NATIONAL BANK OF INDIANAPOLIS CORPORATION
EXECUTIVES’ DEFERRED COMPENSATION PLAN
Pursuant to resolutions adopted by the Board of
Directors of The National Bank of Indianapolis Corporation, an
Indiana corporation (the “Corporation”), the
undersigned officers of the Corporation hereby adopt The National
Bank of Indianapolis Corporation Executives’ Deferred
Compensation Plan, effective as of January 1, 2005, on behalf
of the Corporation, in the form attached hereto.
Dated this 15th
day of December, 2005.
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THE NATIONAL
BANK OF INDIANAPOLIS
CORPORATION
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By:
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/s/ Michael S.
Maurer
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Michael S.
Maurer, Chairman
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David R. Frick,
Secretary
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1
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1
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1
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Section 1.3 Administration
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1
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2
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6
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6
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Section 2.2 No Contract of
Employment
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6
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ARTICLE III PARTICIPANT DEFERRALS AND
CORPORATION CONTRIBUTIONS
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6
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Section 3.1 Participant
Deferrals
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6
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Section 3.2 Deferral Elections
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6
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Section 3.3 Participant Deferral
Limits
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7
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Section 3.4 Matching
Contributions
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7
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Section 3.5 Supplemental
Contributions
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7
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Section 3.6 Allocation of Deferrals and
Contributions
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8
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Section 3.7 Application of Earnings and
Adjustment of Earnings Rate
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8
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Section 3.8 Adjustments to Bookkeeping
Accounts
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8
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Section 3.9 Unsecured Contractual
Rights
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9
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ARTICLE IV VESTING AND
DISTRIBUTIONS
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9
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9
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Section 4.2 Time of Payment of
Benefits
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10
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Section 4.3 Form of Payment of
Benefits
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10
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Section 4.4 Death of Participant and
Beneficiary Designation
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10
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Section 4.5 Repayment of
Benefits
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ARTICLE V PLAN ADMINISTRATION
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11
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Section 5.1 Administration by the
Committee
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Section 5.2 Powers and Responsibilities of
the Committee
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Section 5.3 Claims Procedure
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Section 5.4 Income and Employment Tax
Withholding
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ARTICLE VI AMENDMENT AND
TERMINATION
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Section 6.1 Amendment of the
Plan
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Section 6.2 Termination of the
Plan
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i
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ARTICLE VII MISCELLANEOUS
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Section 7.1 Gender and Number
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Section 7.3 Governing Law
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Section 7.6 No Effect on Employment or
Service
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Section 7.7 Participation
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Section 7.8 Liability and
Indemnification
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Section 7.9 Nontransferability
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15
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Section 7.11 Incapacity of Participant or
Beneficiary
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Section 7.12 Corporate
Successors
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Section 7.14 Action by the
Corporation
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Section 7.15 Information to be Furnished by
Participants
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ii
Section 1.1 Purpose . The purpose of The
National Bank of Indianapolis Corporation Executives’
Deferred Compensation Plan (the “Plan”) is to provide
executive officers of the Corporation’s wholly owned
subsidiary, The National Bank of Indianapolis (the
“Bank”), with deferred compensation benefits in
addition to benefits attributable to compensation deferred under
The National Bank of Indianapolis 401(k) Savings Plan (the
“Savings Plan”). It is the intention of the Corporation
that the Plan constitute an unfunded arrangement maintained for the
purpose of providing deferred compensation for a select group of
management or highly compensated employees for federal income tax
purposes and for purposes of Title I of the Employee Retirement
Income Security Act of 1974, as amended. Consequently, it will be
administered and its provisions interpreted consistently with that
intention.
Section 1.2 Structure . The Plan is divided
into three components, as follows:
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(a)
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A “Participant
Deferral” component pursuant to which, effective for Plan
Years commencing on and after January 1, 2006, the Corporation
may make a contribution to the Plan on behalf of a Participant in
accordance with a written deferral agreement between the
Participant and the Bank.
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(b)
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A “Matching
Contribution” component pursuant to which, effective for Plan
Years commencing on and after January 1, 2006, Participant
Deferrals can be matched by a contribution made by the Corporation,
as follows:
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(i)
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A specified match equal to
50 percent of Participant Deferrals; and
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(ii)
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An additional, discretionary match
in such amount as may be determined by the Committee in its sole
discretion.
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(c)
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A “Supplemental
Contribution” component pursuant to which, effective for Plan
years commencing on and after the Effective Date, the Corporation
may make a contribution to the Plan on behalf of a Participant in
such amount as may be determined by the Committee in its sole
discretion.
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The term “contribution”
is used in the Plan solely for ease of reference.
“Contributions” hereunder are merely credits to a
Participant’s bookkeeping account.
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Section 1.3 Administration . The Plan will be
administered by the Committee. The Committee may, from time to
time, adopt any rules and procedures it deems necessary or
desirable for the proper and efficient administration of the Plan
that are consistent with the terms of the Plan. Any notice or
document required to be given or filed with the Committee will be
properly given or filed if delivered to or mailed, by certified
mail, return receipt requested, postage paid, to The National Bank
of Indianapolis, 107 North Pennsylvania Street, Suite 700,
Indianapolis, Indiana 46204, Attention: Compensation
Committee.
Section 1.4 Definitions . Whenever the initial
letter of a word or phrase is capitalized herein, the following
words and phrases will have the meanings stated below unless a
different meaning is plainly required by the context:
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(a)
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“Bank” means The
National Bank of Indianapolis, the wholly owned subsidiary of the
Corporation.
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(b)
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“Base Salary” means a
Participant’s annual base salary payable by the Bank in cash
for a Plan Year, unreduced by Participant Deferrals or salary
reduction contributions made on behalf of the Participant under a
plan which qualifies under Section 401(k), 132(f) and/or 125
of the Code.
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(c)
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“Board” means the Board
of Directors of the Corporation.
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(d)
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“Bonus” means the
annual bonus payable to a Participant, in the Plan Year following
the Plan Year to which the Bonus relates, under the Bank’s
annual (i) Incentive Plan, and (ii) Top Management
Discretionary Bonus Plan.
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(e)
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“Cause” means
(i) action by a Participant involving willful misconduct or
gross negligence which is materially injurious to the Corporation,
(ii) the written requirement or direction of a federal or
state regulatory agency having jurisdiction over the Company to
terminate a Participant’s employment, (iii) conviction
of a Participant of the commission of any criminal offense
involving dishonesty or breach of trust, or (iv) any
intentional breach by a Participant of a material term, condition
or covenant of his severance agreement with the
Corporation.
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(f)
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“Change in Control of the
Corporation” means:
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(i)
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A Change in Control will occur on
the date that any person, or group of persons (as defined below),
acquires ownership of stock of the Corporation that, together with
any stock held by the person or group, constitutes more than
50 percent of the total fair market value or total voting
power of the issued and outstanding shares of the Corporation.
However, if any person or group is considered to own more than
50 percent of the total fair market value or total voting
power of the issued and outstanding stock of the Corporation, the
acquisition of additional stock by the same person or group will
not be considered to cause a Change in Control. An increase in the
percentage of stock owned by any person or 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.
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For purposes of this subsection
(f), persons will not be considered to be acting as a group solely
because they purchase or own stock at the same time. However,
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 Corporation. If a person, including an entity, owns stock
in both corporations that enter into a merger, consolidation,
purchase or acquisition of stock or similar transaction, such
shareholder is considered to be acting as a group with other
shareholders in a corporation prior to the transaction giving rise
to the change and not with respect to the ownership interest in the
other corporation.
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(ii)
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A Change in Control will occur
when: (A) any person or group acquires, or has acquired during
the 12-month period ending on the date of the most recent
acquisition by such person(s), ownership of stock of the
Corporation which possesses 50 percent or more of the total
voting power of the Corporation’s issued and outstanding
stock; or (B) a majority of members of the Board is replaced
during any 12-month period by directors whose appointment or
election is not endorsed by a majority of the members of the Board
prior to the date of the appointment or election. However, if any
person or group is considered to effectively control the
Corporation, the acquisition of additional control of the
Corporation by the same person(s) will not be considered to cause a
Change in Control.
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(iii)
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A Change in Control will occur on
the date that any person or group acquires, or has acquired during
the 12-month period ending on the date of the most recent
acquisition by such person(s), assets from the Corporation that
have a total gross fair market value equal to or more than
40 percent of the total gross fair market value of all of the
Corporation’s assets immediately prior to such
acquisition(s). For purposes of this paragraph (iii), “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. Notwithstanding the foregoing provisions of this paragraph
(iii), there will be no Change in Control under this paragraph
(iii) in the case of a transfer to an entity that is
controlled by the shareholders of the transferring corporation
immediately after the transfer; furthermore, a transfer of assets
by the Corporation is not treated as a Change in Control if the
assets are transferred to: (A) a shareholder of the
Corporation (immediately before the asset transfer) in exchange for
or with respect to his stock; (B) an entity, 50 percent
or more of the total value or voting power of which is owned,
directly or indirectly, by the Corporation; (C) a person, or
group of persons, that owns, directly or indirectly,
50 percent or more of the total value or voting power of all
of the Corporation’s issued and outstanding stock; or
(D) an entity, at least 50 percent of the total value or
voting power of which is owned, directly or indirectly, by a person
or group described in (C); furthermore, a transfer of assets the
proceeds of which are retained by the transferor corporation(s) to
finance continuing operations, rather than distributed to
shareholders, will be disregarded for purposes of this paragraph
(iii). For purposes of this paragraph (iii) and except as
otherwise provided herein, a person’s status will be
determined immediately after the transfer of the assets. For
example, a transfer to a corporation in which the transferor
corporation has no ownership interest before the transaction, but
which is a majority-owned subsidiary of the transferor corporation
after the transaction, will not be treated as a Change in
Control.
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Notwithstanding the foregoing, a Change in
Control of the Corporation will not occur as a result of the
issuance of stock by the Corporation in connection with any private
placement offering of its stock or any public offering of its
stock.
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(g)
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“Code” means the
Internal Revenue Code of 1986, as amended. Reference to a specific
section of the Code or regulation thereunder will include such
section, guidance issued by the Internal Revenue Service or the
Treasury Department with respect to such section, any valid
regulation promulgated under such section, and any comparable
provision of any future law, legislation or regulation amending,
supplementing or superseding such section or regulation.
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(h)
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“Committee” means the
Compensation Committee of the Board.
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(i)
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“Corporation” means The
National Bank of Indianapolis Corporation, the parent corporation
of the Bank.
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(j)
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“Earnings Rate” means
the monthly average constant rate of interest on 10-year Treasury
securities for the 12-month period ended on September 30 of
the year prior to the Plan Year to which the Earnings Rate will
apply, plus 150 basis points.
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(k)
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“Effective Date” means
January 1, 2005.
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(l)
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“Matching
Contributions” means amounts credited by the Corporation to a
Participant’s Matching Contribution Account in accordance
with Section 3.4.
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(m)
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“Matching Contribution
Account” means that portion of a Participant’s
individual bookkeeping account maintained in accordance with
Section 3.6. attributable to:
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(i)
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Matching Contributions allocated to
such Participant pursuant to Section 3.4; and
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(ii)
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Adjustments to his Matching
Contributions Account, reduced by any distributions from such
account pursuant to Article IV.
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(n)
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“Participant” means a
salaried executive employee of the Bank designated by the Committee
as eligible to participate in the Plan.
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(o)
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“Participant Deferral
Account” means the portion of a Participant’s
individual bookkeeping account maintained in accordance with
Section 3.6. attributable to
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(i)
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Participant Deferrals allocated to
such Participant pursuant to Section 3.1; and
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(ii)
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Adjustments to his Participant
Deferral Account, reduced by any distributions from such account
pursuant to Article IV.
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(p)
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“Participant Deferrals”
means amounts credited by the Corporation to a Participant Deferral
Account, at the election of a Participant, in lieu of receiving
Base Salary and/or Bonus, pursuant to a written agreement between
the Participant and the Bank.
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(q)
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“Plan” means the
deferred compensation plan embodied herein, as amended from time to
time, known as The National Bank of Indianapolis Executives’
Deferred Compensation Plan.
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(r)
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“Plan Year” means the
12-month period beginning each January 1 and ending on the
following December 31.
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(s)
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“Supplemental Contribution
Amount” means that portion of the individual bookkeeping
account maintained in accordance with Section 3.6 attributable
to
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(i)
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Supplemental Contributions
allocated to such Participant pursuant to Section 3.5;
and
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(ii)
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The Adjustments to his Supplemental
Contributions Account, reduced by any distributions from such
account pursuant to Article IV.
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(t)
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“Supplemental
Contributions” means amounts credited by the Corporation to a
Participant’s Supplemental Contribution Account in accordance
with Section 3.5
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(u)
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“Total and Permanent
Disability” means the inability of a Participant 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. For purposes of this subsection
(r), a Participant who, by reason of any medically determinable
physical or mental impairment that can be expected to result in
death or last for a continuous period of not less than
12 months, is receiving income replacement benefits for a
period of not less than three months under an accident and health
plan sponsored by the Bank will be deemed to be Totally and
Permanently Disabled. The Committee will be the sole and final
judge of disability, as defined herein, after consideration of such
evidence as it may require, including the reports of such physician
or physicians as it may designate. Notwithstanding the foregoing, a
disability will not qualify under the Plan if it is the result, as
determined by the Committee in its sole discretion, of (a) an
intentionally self-inflicted injury or an intentionally
self-induced sickness, or (b) an injur
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