FIRST INDIANA CORPORATION
SUPPLEMENTAL BENEFIT PLAN
PLAN AGREEMENT
THIS AGREEMENT is made as of the first day of May, 1997,
by and between First Indiana Bank (hereinafter referred to as
the "Employer") and Named Executive, (hereinafter referred to as
the "Employee").
WITNESSETH:
WHEREAS, the Board of Directors of the Employer has
determined that it is desirable and in the best interest of
the Employer to adopt a new Supplemental Benefit Plan (the
"Plan") and terminate its existing Supplemental Benefit Plan
(the "Prior Plan");
WHEREAS, the Board of Directors at its meeting on April
16, 1997, approved and adopted the Plan and terminated the
Prior Plan; and
WHEREAS, the Board of Directors at said meeting
authorized the officers of the Employer to do any and all
things necessary or desirable to put the Plan in effect; and
WHEREAS, the Employee has been selected to become a
participant of the Plan, and the Employee elects to so
participate.
IT IS THEREFORE AGREED:
1. The Employee shall be eligible to receive any and all
benefits to which he is entitled under the terms of the
Plan.
2. Vesting. The Employee shall be vested with respect to
the "excess plan portion" of his monthly retirement
benefits under the Plan to the same extent he is vested
with respect to benefits payable under the DB Pension
Plan. He became or shall become fully vested with
respect to his other benefits under the Plan and this
Agreement (the remainder of his monthly retirement
benefit) at the time specified in the Plan or, if
earlier, when the sum of his whole years of age plus his
whole years of service with the Employer and its
affiliates exceeded or exceeds 80, provided he remains in
the service of the Employer and its affiliates until such
time. For purposes of the Plan and this Agreement, the
Employee's whole years of service with the Employer and
its affiliates shall be determined in the same manner as
it is determined for vesting purposes under the DB
Pension Plan.
3. Arbitration. In the event of any disputes, differences,
controversies or claims arising out of, or in connection
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with, the Employee's rights under the Plan or this
Agreement, other than a dispute in which the sole relief
sought is an equitable remedy, such as a temporary
restraining order or a permanent or temporary injunction,
the parties shall be required to have the dispute,
controversy, difference or claim settled through binding
arbitration pursuant to the American Arbitration
Association's rules of Commercial Arbitration which are
then in effect The location of all arbitration
proceedings shall be Indianapolis, Indiana. One
arbitrator shall be selected by the parties and shall be
a current or former executive officer (vice president or
higher) of a publicly-traded corporation. In the event
the parties are unable to mutually agree upon a person to
act as the arbitrator, or in the event a mutually-agreed
upon arbitrator shall fail to accept the appointment by
the parties, the parties shall jointly request from the
American Arbitration Association a list of the names of
five persons qualified to act as an arbitrator under this
clause. The selection of the final arbitrator then shall
be achieved by each party alternately striking a name,
with the Employer going first, until one name remains.
In the event the parties mutually agree that the five
names submitted by the American Arbitration Association
are unsatisfactory, they jointly may request a second
list of five names from the American Arbitration
Association and final selection shall be achieved through
the procedure set out herein. The decision of the
arbitrator shall be final and binding upon both parties,
and any award entered by the arbitrator shall be final,
binding and non-appealable, and judgment may be entered
thereon by either party in accordance with the applicable
law in any court of competent jurisdiction. The
arbitrator shall not have authority to modify any
provision of the Plan or this Agreement nor to award a
remedy for any difference, dispute, controversy or claim
arising under the Plan or this Agreement other than a
benefit specifically provided under or by virtue of the
Plan or this Agreement. The Employer shall be
responsible for all of the reasonable expenses of the
American Arbitration Association, the arbitrator and the
conduct of the selection and the arbitration procedures
set forth in this section, including reasonable
attorneys' fees and expenses incurred by either party
which are associated with the arbitration procedure
through the time the final arbitration decision or award
is rendered. This arbitration provision shall be
specifically enforceable.
4. Limitation on Payments.
(a) Anything in the Plan or this Agreement to the contrary
notwithstanding, in the event that it shall be determined
that any payment or distribution by the Bank to or for
the benefit of the Executive pursuant to the terms of the
Plan or this Agreement (a "Payment"), would constitute an
"excess parachute payment" within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended
(the "Code"), the aggregate present value of amounts
payable or distributable to or for the benefit of the
Executive pursuant to the Plan or this Agreement (such
payments or distributions pursuant to the Plan or this
Agreement are hereinafter
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referred to as "Agreement Payments") shall be reduced (but not
below zero) to the Reduced Amount. The "Reduced Amount" shall be an
amount expressed in present value which maximizes the aggregate
present value of Agreement Payments without causing any
Payment to be subject to tax under Section 4999 of the
Code. For purposes of this Section 4, present value
shall be determined in accordance with Section 280G(d)(4)
of the Code.
(b) All determinations to be made under this Section 4 shall
be made by an independent national accounting firm
designated by the Bank (the "Accounting Firm"), which
firm shall provide its determinations and any supporting
calculations both to the Bank and the Executive within 10
days after the date for payment of any Agreement Payment
subject to reduction under this section. Any such
determination by the Accounting Firm shall be binding
upon the Bank and the Executive. The Executive shall
then have the right to determine which of the Agreement
Payments shall be eliminated or reduced in order to
produce the Reduced Amount in accordance with the
requirements of this section. Within five days after
this determination, the Bank shall pay (or cause to be
paid) or distribute (or cause to be distributed) to or
for the benefit of the Executive such amounts as are then
due to the Executive under the Plan or this Agreement.
(c) As a result of the uncertainty in the application of
Section 280G of the Code, it is possible that Agreement
Payments will have been made by the Bank which should not
have been made ("Overpayment") or that additional
Agreement Payments which have not been made by the Bank
could have been made ("Underpayment"), in each case,
consistent with the calculations required to be made
hereunder. From time to time as the Bank or the
Executive shall deem appropriate, the Accounting Firm
shall review the determinations made by it pursuant to
subsection (b) of this section, and the Bank and the
Executive shall cooperate and provide all information
necessary for such review. In the event that the
Accounting Firm determines that an Overpayment has been
made, any such Overpayment shall be treated for all
purposes as a loan to the Executive which the Executive
shall repay to the Bank together with interest from the
date of payment under the Plan or this Agreement at the
applicable Federal rate provided for in Section
7872(f)(2) of the Code (the "Federal Rate"); provided,
however, that no amount shall be
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payable by the Executive to the Bank if and to the extent such
payment would not reduce the amount which is subject to tax under
Section 4999 of the Code. In the event that the Accounting Firm
determines that an Underpayment has occurred, any such
Underpayment shall be promptly paid by the Bank to or for
the benefit of the Executive together with interest from
the date of payment under the Plan or this Agreement at
the Federal Rate.
(d) All of the fees and expenses of the Accounting Firm in
performing the determinations referred to in subsections
(b) and (c) above shall be borne solely by the Bank. The
Bank agrees to indemnify and hold harmless the Accounting
Firm of and from any and all claims, damages and expenses
resulting from or relating to its determinations pursuant
to subsections (b) and (c) above, except for claims,
damages or expenses resulting from the gross negligence
or willful misconduct of the Accounting Firm.
(e) In the event the Plan or this Agreement is subject to
Section 18(k) of the Federal Deposit Insurance Act (the
"FDIA") at the time any payment is to be made by the Bank
to the Executive pursuant to the Plan or this Agreement
or otherwise, such payment will be subject to, and
conditioned upon, its compliance with Section 18(k) of
the FDIA and any regulations promulgated thereunder.
5. To the extent applicable to the Plan and this Agreement,
the required provisions of 12 C.F.R. Section 563.39(b) are
incorporated herein by reference. In the case of any
conflict between such required provisions and the other
provisions of this Agreement or between such required
provisions and the provisions of the Plan, such required
provisions shall control.
6. Prior to the effective date of this Agreement, the
Employee was covered under the Prior Plan. The benefits
provided under this Agreement and the Plan to which this
Agreement relates are in lieu of the benefits provided to
the Employee under the Prior Plan.
IN WITNESS WHEREOF, this Agreement has been made as of the
date herein above written.
Employer:
By: _________________________
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Xxxx X. Xxxxxx, Xx.,
President
First Indiana Bank
EMPLOYEE:
_____________________________
Named Executive
_____________________________
Street Address or P. O. Box
_____________________________
City, State, Zip
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