(As Amended and Restated Effective as of January 1, 2003)
1
DEFERRED COMPENSATION PLAN FOR DIRECTORS OF OLD NATIONAL BANCORP AND SUBSIDIARIES
TABLE OF CONTENTS
ARTICLE
PAGE
INTRODUCTION
1
I DEFINITIONS
1
1.1 “Adjustment”
1
1.2 “Board”
1
1.3 “Code
1
1.4 “Committee”
1
1.5 “Company”
1
1.6 “Compensation”
1
1.7 “Director”
2
1.8 “Disabled” or “Disability”
2
1.9 “Effective Date”
2
1.10 “Individual Account”
2
1.11 “Participant”
2
1.12 “Plan”
2
1.13 “Plan Year”
2
1.14 “Subsidiary” or “Subsidiaries”
2
II ELIGIBILITY AND PARTICIPATION
2
III CONTRIBUTIONS AND ALLOCATIONS
3
3.1 Participant Deferral Contributions
3
3.2 Compensation Deferral Agreement
3
3.3 Allocation of Adjustments
4
IV INVESTMENT OF CONTRIBUTIONS
4
4.1 Investment Credits
4
4.2 Crediting of Adjustments
5
4.3 Notification to Participants
5
4.4 Unsecured Contractual Rights
6
ARTICLE
PAGE
V DISTRIBUTIONS
6
5.1 Time of Payment of Benefits
6
5.2 Methods of Payment
6
5.3 Death of the Participant and Beneficiary Designation
7
5.4 Suspension of Distributions on Insolvency of Company
8
5.5 Suspension of Installment Distributions Upon Reinstatement
8
VI PLAN ADMINISTRATION
9
6.1 Appointment of the Committee
9
6.2 Powers and Responsibilities of the Committee
9
6.3 Liabilities
10
6.4 Claims and Review Procedures
10
VII AMENDMENT AND TERMINATION OF THE PLAN
13
7.1 Amendment of the Plan
13
7.2 Termination of the Plan
13
VIII MISCELLANEOUS
13
8.1 Governing Law
13
8.2 Headings and Gender
14
8.3 Participant’s Rights; Acquittance
14
8.4 Spendthrift Clause
14
8.5 Counterparts
14
8.6 No Enlargement of Director Rights
14
8.7 No Guarantee
14
8.8 Limitations on Liability
14
8.9 Incapacity of Participant or Beneficiary
14
8.10 Corporate Successors
15
SIGNATURES
15
2
INTRODUCTION
Effective January 1, 2003, Old National Bancorp (the “Company”) adopts the Amended and Restated Deferred Compensation Plan for Directors of Old National Bancorp and Subsidiaries (the “Plan”), as set forth herein. The Plan was originally effective January 1, 2000, and, prior to this amendment and restatement effective January 1, 2003, was not subsequently amended after its original effective date.
The purpose of this Plan is to formalize the terms and conditions pursuant to which certain eligible directors of the Company may elect to defer the receipt of all or a portion of the compensation to be paid to such directors by the Company, for the valuable services which such directors perform for the benefit of the company, and upon which the Company shall pay such deferred compensation to such directors at the cessation of their services as directors, or to their designated beneficiaries in the event of their death prior to the receipt of the full amount of such deferred compensation.
The Company intends this Plan to be an unfunded, non-qualified plan of deferred compensation, maintained primarily to provide retirement income for its directors eligible to participate in the Plan, both for income tax purposes under the Internal Revenue Code of 1986, as amended, and for the purpose of an exempt plan under the Employee Retirement Income Security Act of 1974, as amended.
ARTICLE I
DEFINITIONS
Whenever the initial letter of a word or phrase is capitalized herein, the following words and phrases shall have the meanings stated below unless a different meaning is plainly required by the context:
1.1 “Adjustment” 1.2 means the hypothetical net increases and decreases in the market value of the Individual Account of each Participant as described in Article IV.
1.2 “Board” means the Board of Directors of Old National Bancorp.
1.3 “Code” means the Internal Revenue Code of 1986, as amended from time to time. References to a section of the Code shall include that section and any comparable section or sections of any future legislation that amends, supplements or supersedes said section.
1.4 “Committee” means the Compensation Committee of the Board, or a duly authorized officer of the Company empowered by such Committee to act on its behalf, responsible for administering the Plan, as described in Section 6.2.
1.5 “Company” means Old National Bancorp and its Subsidiaries.
1.6 “Compensation” means the total amount of retainer and board or committee meeting fees paid by the Company to the Director during or for a calendar year. Compensation taken into account for all purposes under the Plan shall not be limited as provided in Section 401(a)(17) of the Code.
1.7 “Director” means an individual who: (i) is not employed by the Company or a Subsidiary; (ii) is serving as a member of the board of directors of either the Company, Old National Bank or a Subsidiary, or is serving as an associate director of one of the Company’s community banks; and (iii) has been designated by the Committee as eligible for participation in this Plan.
1.8 “Disabled” or “Disability” means the physical or mental condition which totally and permanently prevents the Participant from performing his duties as a Director. The Committee shall be the sole and final judge of Disability within the meaning of the Plan, after consideration of such evidence as it may require, including the reports of such physician or physicians as it may designate.
1.9 “Effective Date” of the Plan means January 1, 2000; the effective date of this amended and restated Plan is January 1, 2003.
1.10 “Individual Account” means the individual account maintained for each Participant in accordance with the terms of the Plan. Such Individual Account is comprised of the contributions made to the Plan by the Company pursuant to Section 3.1, in lieu of cash paid by the Company directly to the Director, at the election of the Participant under a Compensation Deferral Agreement between the Participant and the Company, plus the Adjustments credited thereto pursuant to Section 3.3, reduced by any distributions therefrom pursuant to Article V. Although the term “contribution” is used herein for ease of reference, credits to a Participant’s Individual Account under the Plan are merely credits to a bookkeeping account and are not actual cash or other contributions.
1.11 “Participant” means a Director who is eligible to become and who does become a Participant pursuant to the provisions of Article II of the Plan.
1.12 “Plan” means the Supplemental Deferred Compensation Plan For Directors of Old National Bancorp and Subsidiaries.
1.13 “Plan Year” means the twelve (12) month period beginning January 1 and ended December 31.
1.14 “Subsidiary” or “Subsidiaries” means any corporation more than fifty percent (50%) of whose total combined voting stock of all classes is held by the Company or by another corporation qualifying as a Subsidiary within this definition.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
A Director is eligible to commence participation in the Plan upon written notice by the Committee that he has been designated as an eligible Participant under the Plan. Participation will commence as of the date such Director enters into a Compensation Deferral Agreement pursuant to Section 3.2.
ARTICLE III
3
CONTRIBUTIONS AND ALLOCATIONS
3.1Participant Deferral Contributions.
(a)
Amount of Contribution. Each Plan Year the Participant may elect prior to the beginning of the Plan Year to defer either twenty-five percent (25%), fifty percent (50%), seventy-five (75%) or one hundred percent (100%) of the Compensation otherwise payable to the Participant during the Plan Year. Provided, however, in the case of a Participant’s initial year of participation under the Plan, the Participant may elect to commence compensation deferral contributions within sixty (60) days after the Participant is designated as a Participant by the Committee; such election shall commence with respect to Compensation paid after the effective date of the election. Such percentage shall remain in effect throughout the Plan Year and for each Plan Year thereafter until another percentage (either 25%, 50%, 75% or 100%) is elected by the Participant prior to the beginning of the applicable Plan Year, or until the Committee notifies the Participant that the Participant is no longer eligible for contributions under this Section 3.1.
(b)
Limit on Contributions. The maximum percentage of a Participant’s Compensation that may be subject to Participant deferral contributions for a Plan Year commencing on or after January 1, 2000, shall not exceed one hundred percent (100%) of such Participant’s Compensation for such Plan Year.
(c)
Timing of Contributions. Compensation deferral contributions made for the benefit of a Participant for any Plan Year shall be made to the Participant’s Individual Account not less often than once per calendar quarter.
3.2Compensation Deferral Agreement. As a condition to the Company’s obligation to credit Compensation deferral contributions for the benefit of a Participant pursuant to Section 3.1, the Participant must execute a Compensation Deferral Agreement with the Company on such forms as shall be prescribed by the Committee, a copy of which is attached hereto as Exhibit One, in which it is agreed that the Company will withhold payment of all or a portion of the Participant’s Compensation and shall credit such amount withheld to the Participant’s Individual Account at the times set forth in the Plan. Except as otherwise provided in Section 3.1(a), in the case of a Participant’s initial year of participation under the Plan, the Compensation Deferral Agreement for any Plan Year must be executed and delivered by the Participant and the Employer prior to the first day of the Plan Year to which the Compensation Deferral Agreement relates.
The Participant’s election to defer a portion of his Compensation each year shall be irrevocable once made, except that the Committee, in its sole discretion, may waive the Participant’s election to defer Compensation if the Participant has suffered an unforeseeable emergency which results in a severe financial hardship. Such waiver shall apply to the portion of the Plan Year remaining after the Committee’s determination that the Participant has suffered a severe financial hardship. The effective date of the waiver shall be fixed by the Committee after application by the Participant under such procedures as may be fixed by the Committee. The Participant’s application shall include a signed statement of the facts causing financial hardship and any other facts required by the Committee in its discretion. For the purposes of this Section 3.2, an unforeseeable emergency is a severe financial hardship to a Participant resulting from a sudden and unexpected illness or accident of the Participant or of a dependent of the Participant (as defined in IRC Section 152(a)), loss of the Participant’s property due to casualty, or other similar extraordinary and unforeseen circumstances arising as a result of events beyond the control of the Participant. The circumstances that will constitute an unforeseeable emergency will depend upon the facts of each case; however, the Committee shall not grant any waiver of a Participant’s deferral election to the extent that his hardship may be relieved (i) through reimbursement or compensation by insurance or otherwise; (ii) by liquidation of Participant’s assets, to the extent liquidation of such assets would not itself cause severe financial hardship; or (iii) by cessation of salary deferral contributions under any other retirement plan, qualified or non-qualified, in which he may also be a participant. An unforeseeable emergency shall not include the need to send the Participant’s child to college or the desire to purchase a home.
3.3Allocation of Adjustments.
(a)
Individual Account. The Committee shall establish and maintain an account to be known as the Individual Account in the name of each Participant, to which the Committee shall credit all amounts allocated to each such Participant pursuant to this Article III.
(b)
Determination of Adjustments. Following the allocations made pursuant to Section 3.1, the Committee shall determine the Adjustments for each calendar quarter during the applicable Plan Year pursuant to Section 4.2.
(c)
Allocation of Adjustments. The Adjustments shall be allocated as of each March 31, June 30, September 30 and December 31 to the Individual Accounts of Participants who maintain a credit balance in their Individual Accounts as of any such date.
ARTICLE IV
INVESTMENT OF CONTRIBUTIONS
4.1Investment Credits.
(a)
For each Plan Year commencing prior to January 1, 2003, the Individual Account of each Participant was credited with the hypothetical increase or decrease in that account resulting from the investment and reinvestment elections made by the Participant pursuant to the Participant Directed Investment option set forth in Section 4.1 of the Plan as in effect prior to January 1, 2003. Effective January 1, 2003, such option is no longer available under the Plan.
(b)
For the Plan Year commencing January 1, 2003, the Individual Account of each Participant shall be credited with the hypothetical increase or decrease in that account resulting from the investment elections made by the Participant pursuant to this sub-section. Effective January 1, 2003, each Participant may elect to hypothetically invest the entirety of his or her Individual Account in one of the following options: (i) a 100% Fixed Income Fund; (ii) a 50% Equity/50% Bond (Balanced) Fund; or (iii) an 80% Equity/20% Bond (Aggressive) Fund. The election as of January 1, 2003, of the Fixed Income Fund by a Participant is irrevocable thereafter. A Participant who elects, as of January 1, 2003, the investment of his or her Individual Account in either the Balanced Fund or the Aggressive Fund may subsequently elect, as of either April 1, 2003 or July 1, 2003, to irrevocably change such election and hypothetically invest the entirety of his or her Individual Account thereafter only in the Fixed Income Fund. Effective October 1, 2003, and regardless of any contrary hypothetical investment election of a Participant prior to such date, the entirety of each Participant’s Individual Account will be automatically transferred to the Fixed Income Fund.
(c)
For each Plan Year commencing on or after January 1, 2004, the Individual Account of each Participant shall be credited with a hypothetical, fixed rate of return as determined by the Committee in its sole and absolute discretion. Prior to each such Plan Year the Committee shall so determine such rate of return which rate shall be in effect for the entirety of the next following Plan year. For example, prior to January 1, 2004 the Committee shall determine the rate of return for the Plan Year commencing January 1, 2004 and ending December 31, 2004. The Committee, in its sole and absolute discretion, may determine the fixed rate of return by using any formula or other methodology it deems prudent and the Committee may, in its sole and absolute discretion, change such formula or other methodology at any time and from time to time as it deems prudent to do so; provided, however, no such change shall be applied retroactively if such application would result in a reduction of the fixed rate of return in effect for any Plan Year.
4.2Crediting of Adjustments. As of each calendar quarter the Individual Account of each Participant shall be credited with a hypothetical amount of investment earnings for the allocation period then ending equal to the rate of investment earnings in effect for such period multiplied by the sum of (1) the hypothetical balance credited to such Account as of the first day of such period, and (2) the contributions allocated to such Account during such period.
4.3Notification to Participants. For each Plan Year commencing on or after January 1, 2003, as soon as administratively feasible, and in no event later than the due date of the Participant’s Compensation Deferral Agreement under Section 3.2 for such Plan Year, the Committee shall notify each Participant of the hypothetical fixed rate of return determined for such Plan year by the Committee under Section 4.1.
4.4Unsecured Contractual Rights. The Plan at all times shall be unfunded and shall constitute a mere promise by the Company to make benefit payments in the future. Notwithstanding any other provision of this Plan, neither a Participant nor his designated beneficiary shall have any preferred claim on, or any beneficial ownership interest in, any assets of the Company prior to the time benefits are paid as provided in Article V, including any Compensation deferred hereunder by the Participant. All rights created under this Plan shall be mere unsecured contractual rights of the Participant against the Company.
ARTICLE V
DISTRIBUTIONS
5.1Time of Payment of Benefits . All amounts credited to a Participant’s Individual Account, including any Adjustments credited in accordance with Section 4.2, shall be distributed, if payable in a single lump sum, or shall commence to be distributed, if payable in annual installments, in the month of January following the date as of which the Participant incurs a distributable event (as defined herein). Subsequent installments shall be paid each January thereafter until exhausted. For all purposes under the Plan, a distributable event with respect to each Participant shall occur on the earliest of the following dates: (i) the Participant’s death, (ii) the date on which the Committee makes a determination that the Participant is Disabled, (iii) the date as of which the Participant ceases to be a Director; or (iv) the date on which the Participant attains age seventy (70) years.
5.2Methods of Payment. A Participant’s Individual Account shall be distributed to the Participant, or to his designated beneficiary in the event of his death, in one the following methods effectively elected by the Participant in his Benefit Election Form [as described in (c) below]:
(a) A single lump sum; or
(b)
Annual installments payable over a period of anywhere from two (2) to ten (10) years, as selected by the Participant.
(c)
In order to be timely, a Participant’s election of the form in which his benefits hereunder shall be distributed must be made by delivering a Benefit Election Form, a sample of which is attached hereto as Exhibit Two, to the Committee not later than ten (10) days prior to the date as of which the Participant ceases to be a Director for reasons other than Disability or death, or, if earlier, the date as of which the Participant attains age seventy (70) years. In the case of the Participant’s Disability or death, his Benefit Election Form must be delivered to the Committee prior to the date on which the Committee determines that the Participant is Disabled or prior to the date of his death. If the Participant does not elect a form of distribution, or such election is not timely or properly made, the Participant’s entire benefit shall be paid in the form of a single lump sum.
(d)
Except as otherwise provided in Section 5.5, a Benefit Election Form is irrevocable once Plan benefits are paid or commence to be paid. Prior thereto a Benefit Election Form is revocable by the Participant and may be superseded by timely delivering a new Benefit Election Form to the Committee not later than the date set forth in subsection (c) above.
(e)
A Benefit Election Form must be fully completed, dated, signed by the Participant and timely delivered to the Committee, or to any individual designated by the Committee to receive such forms on its behalf, in order to be of full force and effect. Any such form which is incomplete, undated, unsigned or untimely delivered shall be of no force or effect.
(f)
In the event a Participant elects an annual installment method the initial annual installment amount will be the Individual Account balance otherwise payable in a single sum multiplied by a fraction, the numerator of which is one (1) and the denominator of which is the number of years, two (2) through ten (10), over which the installments shall be paid, as selected by the Participant. Subsequent annual installments will also be a fraction of the unpaid Individual Account balance, the numerator of which is always one (1) but the denominator of which is the denominator used in calculating the previous installment minus one (1). For example, if the Participant elects an installment payment of his account over a three (3) year period, the initial installment will be one-third (1/3) of the single sum account balance, the second installment will be one-half (1/2) of the remaining account balance and the third and final installment will be the entirety (1/1) of the remaining account balance.
5.3 Death of the Participant and Beneficiary Designation.
(a)
Form and Time of Payment. In the event of a Participant’s death, his entire Individual Account (or his entire remaining Individual Account if an annual installment distribution thereof had previously commenced) shall be paid to the Participant’s designated beneficiary in a single lump sum as soon as administratively feasible following the date of death.
(b)
Designation of Beneficiaries. A Participant may designate one or more primary or contingent beneficiaries for the receipt of any death benefit payable on his behalf from the Plan. Such designation must be in writing on a Beneficiary Designation Form prepared by the Committee for this purpose, a copy of which is attached hereto as Exhibit Three. To be effective a Beneficiary Designation Form must be fully completed, dated, signed by the Participant and delivered to the Committee prior to the date of the Participant’s death. Any such form which is incomplete, undated, unsigned by the Participant or untimely delivered to the Committee shall be of no force or effect. If the Participant fails to designate a beneficiary, or if such designation shall for any reason be illegal or ineffective, or if no designated beneficiary survives the Participant, his benefits under the Plan shall be paid: (i) to his surviving spouse; (ii) if there is no surviving spouse, to his descendants (including legally adopted children or their descendants)perstirpes; (iii) if there is neither a surviving spouse nor surviving descendants, to the duly appointed and qualified executor or other personal representative of the Participant to be distributed in accordance with the Participant’s will or applicable intestacy law; or (iv) in the event that there shall be no such representative duly appointed and qualified within thirty (30) days after the date of death of the Participant, then to such persons as, at the date of his death, would be entitled to share in the distribution of the Participant’s estate under the provisions of the applicable statute then in force governing the descent of intestate property, in the proportions specified in such statute. The Committee may determine the identity of the distributees, and in so doing may act and rely upon any information it may deem reliable upon reasonable inquiry, and upon any affidavit, certificate, or other paper believed by it to be genuine, and upon any evidence believed by it to be sufficient.
5.4Suspension of Distributions on Insolvency of Company. The Company shall cease the payment of benefits to Participants and their beneficiaries if the Company is Insolvent. For purposes of the Plan, the Company shall be considered “Insolvent” if:
(i)
it is unable to pay its debts as they become due; or
(ii)
it is subject to a pending proceeding as a debtor under the United States Bankruptcy Code.
During such period, the Company shall hold the assets of the Plan, if any, for the benefit of the Company’s general creditors. Nothing in this Plan shall in any way diminish any rights of Participants and their designated beneficiaries as general creditors of the Company with respect to benefits due under the Plan or otherwise. The Company shall resume the payment of benefits to Participants or their beneficiaries in accordance with the preceding provisions of this Article V upon the termination of its Insolvency. Provided there are sufficient assets, if the Company discontinues the payment of benefits pursuant to this Section 5.4 and subsequently resumes such payments, the first payment following such discontinuance shall include the aggregate amount of all payments due to Participants or their beneficiaries under the terms of the Plan for the period of such discontinuance.
5.5Suspension of Installment Distributions Upon Reinstatement. If a former Director who is receiving annual installments pursuant to Section 5.2(b) is reappointed as a Director and designated by the Committee as an eligible Participant in the Plan pursuant to Article II upon such reappointment, then the distribution of the remaining unpaid installments as of such reinstatement shall be suspended. Such unpaid installments shall not thereafter be distributed until such Participant incurs another distributable event, as described in Section 5.1, subsequent to such reinstatement. Upon the occurrence of such subsequent distributable event the unpaid installments shall be distributed in accordance with the provisions of this Article V in effect as of, and based on the Participant’s Benefit Election Form for, such subsequent distributable event.
ARTICLE VI
PLAN ADMINISTRATION
6.1Appointment of the Committee. The Compensation Committee of the Board, or a duly authorized officer of the Company empowered by the Committee to act on its behalf, shall be responsible for administering the Plan, and shall be charged with the full power and the responsibility for administering the Plan in all its details.
6.2Powers and Responsibilities of the Committee.
(a)
The Committee shall have all powers necessary to administer the Plan, including the power to construe and interpret the Plan documents; to decide all questions relating to an individual’s eligibility to participate in the Plan; to determine the amount, manner and timing of any distribution of benefits or withdrawal under the Plan; to resolve any claim for benefits in accordance with Section 6.4, and to appoint or employ advisors, including legal counsel, to render advice with respect to any of the Committee’s responsibilities under the Plan. Any construction, interpretation, or application of the Plan by the Committee shall be final, conclusive and binding. All actions by the Committee shall be taken pursuant to uniform standards applied to all persons similarly situated.
(b)
Records and Reports. The Committee shall be responsible for maintaining sufficient records to determine each Participant’s eligibility to participate in the Plan, and the Compensation of each Participant for purposes of determining the amount of contributions that may be made by or on behalf of the Participant under the Plan.
(c)
Rules and Decisions. The Committee may adopt such rules as it deems necessary, desirable, or appropriate in the administration of the Plan. All rules and decisions of the Committee shall be applied uniformly and consistently to all Participants in similar circumstances. When making a determination or calculation, the Committee shall be entitled to rely upon information furnished by a Participant or beneficiary, the Company or the legal counsel of the Company.
(d)
Application and Forms for Benefits. The Committee may require a Participant or beneficiary to complete and file with it an application for a benefit, and to furnish all pertinent information requested by it. The Committee may rely upon all such information so furnished to it, including the Participant’s or beneficiary’s current mailing address.
(e)
Court Action. No Participant or beneficiary shall have the right to seek judicial review of a denial of benefits, or to bring any action in any court to enforce a claim for benefits prior to filing a claim for benefits or exhausting his rights to review under this Section 6.4.
6.3Liabilities. The individual members of the Committee shall be indemnified and held harmless by the Company with respect to any alleged breach of responsibilities performed or to be performed hereunder.
6.4Claims and Review Procedures.
(a)
Procedures Governing the Filing of Benefit Claims. All Benefit Claims must be filed on the appropriate claim forms available from the Committee or in accordance with the procedures established by the Committee for claim purposes. A “Benefit Claim” means a request for a Plan benefit or benefits, made by a Claimant or by an authorized representative of a Claimant, which complies with the Plan’s procedures for making benefit claims. “Claimant” means a Participant, a surviving spouse of a Participant, a Beneficiary, or an Alternate Payee, who is claiming entitlement to the payment of any benefit under the Plan.
(b)
Notification of Benefit Determinations. The Committee will notify a Claimant, in accordance with subsection (c) below, of the Plan’s benefit determination within a reasonable period of time after receipt of a Benefit Claim, but not later than 90 days (45 days in the case of a Disability Claim) after receipt of the Benefit Claim by the Plan.
If special circumstances require an extension of time for processing the Benefit Claim, the Committee will notify the Claimant of the extension prior to the termination of the initial period described above. The notice will indicate the special circumstances requiring the extension of time and the date by which the Plan expects to make the benefit determination. In no event will the extension exceed a period of 90 days from the end of the initial period.
In the case of a Disability Claim, the extension period will not exceed 30 days, unless prior to the end of first 30-day extension period, the Committee determines that, due to matters beyond its control, a decision cannot be rendered within the extension period, in which case the period for making the determination may be extended for an additional 30 days. Every Disability Claim notice will specifically explain the standards on which entitlement to a benefit is based, the unresolved issues that prevent a decision on the claim, the additional information needed to resolve those issues and the Claimant’s right to provide the specified information within 45 days. If the extension is in effect due to the Claimant’s failure to submit information necessary to decide a Disability Claim, the period for making the benefit determination will be tolled from the date on which the notice of the extension is sent to the Claimant until the date on which the Claimant responds to the request for information. The term “Disability Claim” means a request for a Plan benefit made by a Claimant due to the purported Total and Permanent Disability of a Plan Participant.
(c)
Manner and Content of Notification of Benefit Determinations. All notices given by the Committee under the Plan will be given to a Claimant, or to his authorized representative, in a manner that satisfies the standards of 29 CFR 2520.104b-1(b) as appropriate with respect to the particular material required to be furnished or made available to that individual. The Committee may provide a Claimant with either a written or an electronic notice of the Plan’s benefit determination. Any electronic notification will comply with the standards imposed by 29 CFR 2520.104b-1(c)(1)(i), (iii) and (iv). In the case of an Adverse Benefit Determination, the notice will set forth, in a manner calculated to be understood by the Claimant:
(i) The specific reasons for the adverse determination;
(ii) Reference to the specific Plan provisions (including any internal rules, guidelines, protocols, criteria, etc.) on which the determination is based;
(iii) A description of any additional material or information necessary for the Claimant to complete the claim and an explanation of why such material or information is necessary;
(iv) For a Disability Claim, the identification of any medical or vocational experts whose advice was obtained on behalf of the Plan in connection with Claimant’s Adverse Benefit Determination, without regard to whether the advice was relied upon; and
(v) A description of the Plan’s review procedures and the time limits applicable to such procedures.
(d)
Appeal of Adverse Benefit Determinations. A Claimant who receives an Adverse Benefit Determination and desires a review of that determination must file, or his authorized representative must file on his behalf, a written request for a review of the Adverse Benefit Determination, not later than 60 days (180 days for a Disability Claim) after receiving the determination.
The written request for a review must be filed with the Committee. Upon receiving the written request for review, the Committee will advise the Claimant, or his authorized representative, in writing that:
(i) The Claimant, or his authorized representative, may submit written comments, documents, records, and any other information relating to the claim for benefits; and
(ii) The Claimant will be provided, upon request of the Claimant or his authorized representative, reasonable access to, and copies of, all documents, records, and other information relevant to the Claimant’s Benefit Claim, without regard to whether those documents, records, and information were considered or relied upon in making the Adverse Benefit Determination that is the subject of the appeal.
(e)
Benefit Determination on Review. All appeals by a Claimant of an Adverse Benefit Determination will receive a full and fair review by an appropriate named fiduciary of the Plan. In the case of a Disability Claim, the named fiduciary will not be: (i) the party who made the Adverse Benefit Determination that is the subject of the appeal, nor (ii) the subordinate of that party. In performing this review for a Disability Claim, the named fiduciary will take into account all comments, documents, records, and other information submitted by the Claimant (or the Claimant’s authorized representative) relating to the claim, without regard to whether the information was submitted or considered in the initial benefit determination, and will not afford deference to the initial Adverse Benefit Determination. For a Disability Claim, the named fiduciary will consult with a healthcare professional who has appropriate training and experience in the field of medicine involved in the medical judgment and who was not consulted in connection with the Adverse Benefit Determination and who is not the subordinate of such an individual if the named fiduciary believes that such a consultation is necessary to properly complete the review process.
(f)
Notification of Benefit Determination on Review. The Committee will notify a Claimant, in accordance with subsection (g) below, of the Plan’s benefit determination on review within a reasonable period of time, but not later than 60 days (45 in the case of a Disability Claim) after the Plan’s receipt of the Claimant’s request for review of an Adverse Benefit Determination. If, however, special circumstances require an extension of time for processing the review by the named fiduciary, the Claimant will be notified, prior to the termination of the initial 60 (or 45) day period, of the special circumstances requiring the extension and the date by which the Plan expects to render the Plan’s benefit determination on review, which will not be later than 120 days (90 days in the case of a Disability Claim) after receipt of a request for review. Provided, however, in the case of a Plan with a Committee or other group designated as the appropriate named fiduciary that holds regularly scheduled meetings at least quarterly, the time limit of this subsection will be modified in accordance with 29 CFR 2560.503-1(i)(1)(ii) or 29 CFR 2560.503-1(i)(3)(ii), whichever is applicable.
If the extension period is in effect for a Disability Claim but the extension is due to the Claimant’s failure to submit information necessary to decide a claim, the period for making the benefit determination on review will be tolled from the date on which notification of the extension is sent to the Claimant until the date on which the Claimant responds to the request for additional information.
(g)
Manner and Content of Notification of Benefit Determination on Review. The Committee will provide a Claimant with notification of its benefit determination on review in a method described in subsection (c) above.
In the case of an Adverse Benefit Determination on review, the notification must set forth, in a manner calculated to be understood by the Claimant:
(a)
The specific reasons for the adverse determination on review;
(b)
Reference to the specific Plan provisions (including any internal rules, guidelines, protocols, criteria, etc.) on which the benefit determination on review is based;
(c)
A statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to the Claimant’s Benefit Claim, without regard to whether those records were considered or relied upon in making the Adverse Benefit Determination on review, including any reports, and the identities, of any experts whose advice was obtained.
(h)
Court Action. No Participant or beneficiary shall have the right to seek judicial review of a denial of benefits, or to bring any action in any court to enforce a claim for benefits, prior to filing a claim for benefits and exhausting his rights to review under this Section 6.4.
ARTICLE VII
AMENDMENT AND TERMINATION OF THE PLAN
7.1Amendment of the Plan. The Company shall have the right at any time by action of the Board to modify, alter or amend the Plan in whole or in part.
7.2Termination of the Plan. The Company reserves the right at any time by action of the Board to terminate the Plan by resolution of the Board or to reduce or cease contributions at any time.
ARTICLE VIII
MISCELLANEOUS
8.1Governing Law. The Plan shall be construed, regulated and administered according to the laws of the State of Indiana, except in those areas preempted by the laws of the United States of America in which case such laws will control.
8.2Headings and Gender. The headings and subheadings in the Plan have been inserted for convenience of reference only and shall not affect the construction of the provisions hereof. In any necessary construction the masculine shall include the feminine and the singular the plural, and vice versa.
8.3Participant’s Rights; Acquittance. No Participant shall acquire any right to be retained in the Company’s employ by virtue of the Plan, nor, upon his dismissal, or upon his voluntary termination of employment, shall he have any right or interest in or to the Company’s assets other than as specifically provided herein.
8.4Spendthrift Clause. No benefit or interest available hereunder will be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment by creditors of the Participant or the Participant’s designated beneficiary, either voluntarily or involuntarily.
8.5Counterparts. This Plan may be executed in any number of counterparts, each of which shall constitute but one and the same instrument and may be sufficiently evidenced by any one counterpart.
8.6No Enlargement of Director Rights. Nothing contained in the Plan shall be construed as a service contract between the Company and any person, nor shall the Plan be deemed to give any person the right to be retained as a Director of the Company or limit the right of the Company to retain or discharge any person with or without cause, or to discipline any Director.
8.7No Guarantee. Neither the Committee nor the Company in any way guarantees the amounts credited under the Plan from loss or depreciation, nor the payment of any money or other assets which may be or become due to any person from the Plan. No Participant shall have any recourse against the Committee if the Company’s assets are insufficient to provide benefits under the Plan.
8.8Limitations on Liability. Notwithstanding any of the preceding provisions of the Plan, none of the Company, the Committee and each individual acting as an employee or agent of any of them shall be liable to any Participant or beneficiary for any claim, loss, liability or expense incurred in connection with the Plan, except when the same shall have been judicially determined to be due to the gross negligence or willful misconduct of such person.
8.9Incapacity of Participant or Beneficiary. If any person entitled to receive a distribution under the Plan is physically or mentally incapable of personally receiving and giving a valid receipt for any payment due (unless prior claim therefor shall have been made by a duly qualified guardian or other legal representative), then, unless and until claim therefor shall have been made by a duly appointed guardian or other legal representative of such person, the Company may provide for such payment or any part thereof to be made to any other person or institution then contributing toward or providing for the care and maintenance of such person. Any such payment shall be a payment for the account of such person and a complete discharge of any liability of the Company and the Plan therefor.
8.10Corporate Successors. The Plan shall not be automatically terminated by a transfer or sale of assets of the Company or by the merger or consolidation of the Company into or with any other corporation or other entity (“Transaction”), but the Plan shall be continued after the Transaction only if and to the extent that the transferee, purchaser or successor entity agrees to continue the Plan. The Company shall not agree to a Transaction unless and until the transferee, purchaser or successor agrees to adopt this Plan and, in connection therewith, agrees to expressly assume all obligations and liabilities of the Company hereunder. In the event that such transferee, purchaser or successor entity sponsors a non-qualified deferred compensation plan for its directors the Individual Account balances under this Plan may as part of the Transaction be transferred to such other plan, and the payment of the benefit liabilities of this Plan may be transferred to such other plan and become liabilities of such transferee, purchaser or successor entity, as set forth in the definitive agreement entered into by the Company in connection with the Transaction.
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SIGNATURES
IN WITNESS WHEREOF, the Company has caused this Amended and Restated Deferred Compensation Plan for Directors of Old National Bancorp and Subsidiaries to be executed by its duly authorized officers this 25th day of January, 2003, but effective as of January 1, 2003.
OLD NATIONAL BANCORP
By:/s/ G. Michael Ledbetter
ATTEST:
By:/s/ Jane Elfreich
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