Exhibit 10.7
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First Midwest Bancorp, Inc.
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Nonqualified Retirement Plan
Plan Document
As Amended and Restated
Effective as of January 1, 1998
Nonqualified Retirement Plan
Plan Document
Table of Contents
Page #
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ARTICLE 1................................................................. 1
1.1 Purpose..................................................... 1
1.2 Effective Date 2
1.3 No Funding Required; Establishment of Nonqualified Trust.... 2
ARTICLE 2................................................................. 2
2.1 Retirement Committee........................................ 2
2.2 Authority of Committee...................................... 3
ARTICLE 3................................................................. 3
3.1 Amendment to Conform with Law............................... 3
3.2 Other Amendments and Termination............................ 3
3.3 Manner and Form of Amendment or Termination................. 5
3.4 Notice of Amendment or Termination.......................... 5
ARTICLE 4................................................................. 5
4.1 No Right to Employment, etc................................. 5
4.2 Successors and Assigns...................................... 5
4.3 Inalienability.............................................. 5
4.4 Incompetency................................................ 5
4.5 Controlling Law............................................. 6
4.6 Severability................................................ 6
4.7 Limitations on Provisions................................... 6
4.8 Tax Withholding............................................. 6
4.9 Gender and Number........................................... 6
ARTICLE 5................................................................. 6
5.1 Application for Benefits and Review Procedures.............. 6
ARTICLE 6................................................................. 7
6.1 Effect of Change in Control................................. 7
PART A-Nonqualified Pension Plan.......................................... 8
A.1 Participation............................................... 8
A.2 Beneficiary................................................. 8
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A.3 Section 415/401(a)(17) Benefit.............................. 9
A.4 Deferred Compensation Benefit............................... 9
A.5 Payment..................................................... 10
A.6 Vesting..................................................... 11
A.7 Distribution of Accrued Benefit............................. 11
A.8 Earnings Credit............................................. 12
PART B-Nonqualified Savings and Profit Sharing Plan....................... 13
B.1 Definitions................................................. 13
B.2 Participation............................................... 15
B.3 Treatment of Excess Savings Contributions and
Supplemental Savings Contributions.......................... 16
B.4 Treatment of Excess Profit Sharing Contributions............ 17
B.5 Earnings Credit............................................. 17
B.6 Loans Prohibited............................................ 17
B.7 Vesting..................................................... 17
B.8 Savings and Profit Sharing Plan Percentage of Pay Changes... 18
B.9 Distribution at Retirement or Termination................... 18
B.10 Distribution of Amounts Attributable to Excess
Profit Sharing Contributions................................ 18
PART C-Nonqualified ESOP.................................................. 21
C.1 Definitions................................................. 21
C.2 Participation............................................... 21
C.3 Treatment of Excess ESOP Contributions...................... 22
C.4 Earnings Credit............................................. 22
C.5 Vesting..................................................... 22
C.6 Distribution at Retirement or Termination................... 22
C.7 Distribution of Amounts Reserved............................ 23
ii
FIRST MIDWEST BANCORP, INC.
NONQUALIFIED PENSION PLAN, NONQUALIFIED SAVINGS
AND PROFIT SHARING PLAN AND
NONQUALIFIED EMPLOYEE STOCK OWNERSHIP PLAN
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ARTICLE 1
1.1 Purpose.
It is the intention of First Midwest Bancorp, Inc. (the "Company") to
maintain certain levels of retirement benefits for employees of the Company and
its subsidiaries who are entitled to benefits under the First Midwest Bancorp
Consolidated Pension Plan, as may from time to time be amended (the "Pension
Plan"), the First Midwest Bancorp Savings and Profit Sharing Plan, as may from
time to time be amended (the "Savings Plan") and the First Midwest Bancorp
Employee Stock Ownership Plan, as may from time to time be amended (the "ESOP").
Accordingly, the Company hereby establishes:
(a) The First Midwest Bancorp Nonqualified Pension Plan (the
"Nonqualified Pension Plan") as Part A hereof to provide benefits to
eligible employees in a manner so as to maintain the level of total
retirement benefits which would be payable under the Pension Plan but for
certain limitations imposed under Section 401(a)(17) and/or Section 415 of
the Internal Revenue Code of 1986 (the "Code") and such employee's
participation in the First Midwest Bancorp Nonqualified Savings and Profit
Sharing Plan.
(b) The First Midwest Bancorp Nonqualified Savings and Profit Sharing
Plan (the "Nonqualified Savings Plan") as Part B hereof to provide benefits
to eligible employees in a manner so as to maintain the level of deferred
compensation and profit sharing benefits which would be payable under the
Savings Plan but for certain limitations imposed under Code Section 402(g),
401(a)(17) and/or 415 and such employee's participation in the Nonqualified
Savings Plan, as well as to enable certain eligible employees to elect
beginning January 1, 1998, to have a greater percentage of base salary or
bonus compensation deferred under the Plan; and
(c) The First Midwest Bancorp Nonqualified ESOP (the "Nonqualified
ESOP") as Part C hereof to provide benefits to eligible employees in a
manner so as to maintain the level of total ESOP benefits which would be
payable under the ESOP but for certain limitations imposed under Code
Section 401(a)(17) and/or 415 and such employee's participation in the
Nonqualified Savings Plan.
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For purposes hereof, the term "Nonqualified Plan" shall mean this Plan and the
Nonqualified Pension Plan, Nonqualified Savings Plan and Nonqualified ESOP which
are a part hereof.
1.2 Effective Date.
The Nonqualified Plan, as amended and restated herein, is effective as of
January 1, 1998.
1.3 No Funding Required; Establishment of Nonqualified Trust.
The Nonqualified Plan is intended to be an unfunded plan of deferred
compensation described in Section 201(2) of the Employee Retirement Income Act
of 1974, as amended ("ERISA") and except to the extent provided otherwise by the
Committee, the Company shall not be required to establish any fund or set aside
any monies for the payment of benefits hereunder. The Committee shall, in its
sole discretion, have the authority to direct the deposit of assets equal in
value to all or any portion of any benefit accrued hereunder into a grantor
trust to assist the Company in discharging its obligations under the
Nonqualified Plan, or to direct the payment of such assets to the Participant or
Beneficiary. Any such grantor trust which may be established at the direction
of the Committee and pursuant to which the Participant or Beneficiary has the
ability to direct the Trustee thereof with respect to the investment of the
grantor trust assets attributable to the Participant's or Beneficiary's accrued
benefit shall be referred to in this Plan as a "Nonqualified Trust." Such
ability to direct the investment of the assets of the Nonqualified Trust shall
be exercised by the Participants or Beneficiaries in such manner and to such
extent as the Committee shall from time to time determine, which ability shall
be subject to such limitations and restrictions as the Committee in its sole
discretion may require. The Committee shall also have authority to increase the
amount of any such benefit so deposited or paid as the Committee may, in its
sole discretion, deem necessary or appropriate to maintain the value of such
benefit after taking into account taxes imposed on the Participant or
Beneficiary as a result of such deposit or payment.
ARTICLE 2
2.1 Retirement Committee.
The Company hereby delegates authority to administer the Nonqualified Plan
to the Human Resources Committee of the Board of Directors of the Company (the
"Committee"). Any action by the Committee shall be evidenced by a written
document, certified by the Secretary of the Committee. References to the
Company's authority, right, or power to act contained in any notice, disclosure,
or communication
2
which is made with a view toward effectuating the purposes of this Nonqualified
Plan shall be construed to include such actions by the Committee on the
Company's behalf and such actions by others to whom the Committee has delegated
its authority.
2.2 Authority of Committee.
The Committee shall have authority to control and manage the operation and
administration of the Nonqualified Plan, including the authority and discretion
to construe and interpret the Nonqualified Plan, decide all questions of
eligibility for and the amount, manner and time of payment of Benefits hereunder
and such other rights and powers necessary or convenient to the carrying out of
its functions hereunder. The Committee may delegate its administrative authority
with respect to the Nonqualified Plan to the Company's Retirement and Benefit
Plans Administration Committee. To the extent the Committee delegates such
administrative authority, references herein to the "Committee" shall be
included to mean references to such Retirement and Benefit Plans Administration
Committee. The authority and responsibilities of the Committee shall be
coextensive with the authority and responsibilities of the Plan Administrator
under the Pension Plan.
ARTICLE 3
3.1 Amendment to Conform with Law.
The Company may by amendment make such changes in, additions to, and
substitutions in the provisions of this Nonqualified Plan, to take effect
retroactively or otherwise, as deemed necessary or advisable for the purpose of
conforming this Nonqualified Plan to any present or future law relating to plans
of this or a similar nature, and to the administrative regulations and rulings
promulgated thereunder.
3.2 Other Amendments and Termination.
The Company may amend or terminate this Nonqualified Plan at any time,
without the consent of any Participant or Beneficiary. Notwithstanding the
foregoing, this Nonqualified Plan shall not be amended or terminated so as to
reduce or cancel the benefits which have accrued to a Participant or Beneficiary
prior to the later of the date of adoption of the amendment or termination or
the effective date thereof, and in the event of such amendment or termination,
any such accrued benefit hereunder shall not be reduced or canceled.
Notwithstanding the preceding provisions of this Section 3.2, this Nonqualified
Plan shall not within two years following a Change in Control (as defined below)
be terminated or amended to diminish the accrual of benefits or reduce the
amount of benefits payable hereunder. For purposes of this Nonqualified Plan, a
"Change in Control" shall mean any of the following events:
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(a) Any "person" (as such term is used in Sections 13(d) and 14(d) of
the Securities Act of 1934, as amended), other than (i) a trustee or other
fiduciary holding securities under an employee benefit plan of the Company
or a subsidiary, or (ii) a corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under said Act), directly or indirectly, of
securities of the Company representing 10% or more of the total voting
power of the then outstanding shares of capital stock of the Company
entitled to vote generally in the election of directors (the "Voting
Stock"), provided, however, that the following shall not constitute a
Change in Control: (A) such person becomes the beneficial owner of 10% or
more of the Voting Stock as the result of the acquisition of such stock
directly from the Company, or (B) such person becomes the beneficial owner
of 10% or more of the Voting Stock as a result of the decrease in the
number o outstanding shares caused by the repurchase of shares by the
Company, provided, further, that in the event a person described in clause
(A) or (B) shall thereafter increase (other than in circumstances described
in clause (A) or (B)) beneficial ownership of stock representing more that
1% of the Voting Stock, such person shall then be deemed to be a beneficial
owner of 10% or more of the Voting Stock for purposes of this paragraph
(a), provided that such person continues to beneficially own 10% or more of
the Voting Stock after such subsequent increase in beneficial ownership, or
(b) During any period of two consecutive years, individuals, who at
the beginning of such period, constitute the Board of Directors of the
Company, and any new director, whose election by the Board of Directors or
nomination for election by the Company's stockholders was approved by a
vote of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved (the "Incumbent
Directors"), cease for any reason to constitute a majority thereof, or
(c) The stockholders of the Company approve, or if such approval is
not necessary or required, the consummation of, a reorganization, merger or
consolidation, the sale or other disposition of all or substantially all of
the assets, or a similar transaction or series of transactions involving
the Company (a "Business Combination") in each case, unless (1) all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Voting Stock immediately prior to such
Business Combination beneficially own, directly or indirectly, more than
50% of the total voting power represented by the voting securities entitled
to vote generally in the election of directors of the Company or the
corporation resulting from the Business Combination
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(including, without limitation, a corporation which as a result of the
Business Combination owns the Company or all or substantially all of the
Company's assets either directly or through ne or more subsidiaries), in
substantially the same proportions as their ownership, immediately prior to
the Business Combination of the Voting Stock of the Company, and (2) at
least a majority of the members of the board of directors of the Company or
such corporation resulting from the Business Combination were members of
the Incumbent Board at the time of the execution of the initial agreement,
or action of the Incumbent Board, providing for such Business Combination;
or
(d) The stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company.
The Committee shall have final authority to determine the exact date on which a
change in control has been deemed to have occurred under (a), (b), (c) and (d)
above.
3.3 Manner and Form of Amendment or Termination.
Any amendment or termination of this Nonqualified Plan by the Company shall
be made only by action of the Board of Directors of the Company or any officer
of the Board of Directors of the Company or any officer of the Company duly
authorized by the Board of Directors. Certification of any amendment or
termination of this Nonqualified Plan shall be furnished to the Committee by the
Company.
3.4 Notice of Amendment or Termination.
The Committee shall notify Participants or Beneficiaries who are affected
by any amendment or termination of this Nonqualified Plan within a reasonable
time thereof.
ARTICLE 4
4.1 No Right to Employment, etc.
Neither the creation of this Nonqualified Plan nor anything contained
herein shall be construed as giving any Participant hereunder or other employees
of the Company or any subsidiary any right to remain in the employ of the
Company or any subsidiary.
4.2 Successors and Assigns.
All rights and obligations of this Nonqualified Plan shall inure to, and be
binding upon the successors and assigns of the Company.
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4.3 Inalienability.
Except so far as may be contrary to the laws of any state having
jurisdiction in the premises, a Participant or Beneficiary shall have no right
to assign, transfer, hypothecate, encumber, commute or anticipate his interest
in any payments under this Nonqualified Plan and such payments shall not in any
way be subject to any legal process to levy upon or attach the same for payment
of any claim against any Participant or Beneficiary.
4.4 Incompetency.
If any Participant or Beneficiary is, in the opinion of the Committee,
legally incapable of giving a valid receipt and discharge for any payment, the
Committee may, at its option, direct that such payment or any part thereof be
made to such person or persons who in the opinion of the Committee are caring
for and supporting such Participant or Beneficiary, unless it has received due
notice of claim from a duly appointed guardian or conservator of the estate of
the Participant or Beneficiary. A payment so made will be a complete discharge
of the obligations under this Nonqualified Plan to the extent of and as to that
payment, and neither the Committee nor the Company will have any obligation
regarding the application of the payment.
4.5 Controlling Law.
To the extent not preempted by the laws of the United States of America,
the laws of the State of Illinois shall be the controlling state law in all
matters relating to this Nonqualified Plan.
4.6 Severability.
If any provisions of this Nonqualified Plan shall be held illegal or
invalid for any reason, the illegality or invalidity shall not affect the
remaining parts of this Nonqualified Plan, but this Nonqualified Plan shall be
construed and enforced as if the illegal and invalid provisions had never been
included herein.
4.7 Limitations on Provisions.
The provisions of this Nonqualified Plan and any Benefits shall be limited
as described herein. Any benefit payable under the Pension Plan, Savings Plan,
or ESOP shall be paid solely in accordance with the terms and provisions of the
Pension Plan, Savings Plan, or ESOP, as appropriate, and nothing in this
Nonqualified Plan shall operate or be construed in any way to modify, amend, or
affect the terms and provisions of the Pension Plan, Savings Plan or ESOP.
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4.8 Tax Withholding.
The payment of any benefit under this Nonqualified Plan shall be subject to
satisfaction of any applicable federal, state or local income or other
withholding requirements.
4.9 Gender and Number.
Whenever the context requires or permits, the gender and number of words
shall be interchangeable.
ARTICLE 5
5.1 Application for Benefits and Review Procedures.
The claims procedure set forth in the Pension Plan shall apply to any claim
for benefits under this Nonqualified Plan. The "Plan Administrator" for
purposes of applying such claims procedure to this Nonqualified Plan shall be
the Committee.
ARTICLE 6
6.1 Effect of Change in Control.
In addition to the limitations set forth in Section 3.2 upon the amendment
and termination of the Plan following a Change in Control (as defined in Section
3.2), all benefits accrued under the Plan as of the date of a Change in Control
shall become fully (i.e., 100%) and irrevocably vested as of the date of the
Change of Control and shall become distributable to the Participants (and
Beneficiaries) in accordance with the terms of the Plan as in effect as of the
date of the Change in Control.
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FIRST MIDWEST BANCORP, INC.
NONQUALIFIED PENSION PLAN, NONQUALIFIED SAVINGS
AND PROFIT SHARING PLAN AND
NONQUALIFIED EMPLOYEE STOCK OWNERSHIP PLAN
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PART A
Nonqualified Pension Plan
-------------------------
A.1 Participation.
An employee of the Company or any of its subsidiaries who would, upon
retirement or other termination of employment, be entitled to a benefit under
the Pension Plan:
(a) the amount of which is reduced by reason of the application of the
limitations imposed by Code Section 415 upon the amount of benefits which may be
paid under the Pension Plan and/or by Code Section 401(a)(17) on the amount of
compensation which may be taken into account in determining the amount of such
benefits shall be entitled to a benefit under Section A.3 of this Nonqualified
Pension Plan; and/or
(b) the amount of which is reduced by reason of the employee's election to
participate in the Nonqualified Savings Plan shall be entitled to a benefit
under Section A.4 of this Nonqualified Pension Plan; and/or
(c) the amount of which does not reflect the crediting of the period of
employment prior to the date the employee first became eligible to participate
in the Pension Plan as a benefit service for purposes of determining the amount
of such benefits shall, if recommended by the Company's Retirement and Benefit
Plans Administration Committee and approved by the Committee in connection with
the employee's commencement of employment with the Company or another Employer,
be entitled to a benefit under Section A.4 of this Nonqualified Pension Plan.
A.2 Beneficiary.
A Beneficiary who would, upon the Participant's death prior to receipt of
any benefits under the Pension Plan or this Nonqualified Pension Plan, be
entitled to a benefit under the Pension Plan:
(a) the amount of which is reduced by reason of the application of the
limitations imposed by Code Section 415 upon the amount of benefits which may be
8
paid under the Retirement Plan and/or by Code Section 401(a)(17) on the amount
of compensation which may be taken into account in determining the amount of
such benefits shall be entitled to a Benefit under Section A.3 of this
Nonqualified Pension Plan; and/or
(b) the amount of which is reduced by reason of the Participant's election
to participate in the Nonqualified Savings Plan shall be entitled to a benefit
under Section A.4 of this Nonqualified Pension Plan; and/or
(c) the amount of which does not reflect the crediting of the period of
employment prior to the date the employee first became eligible to participate
in the Pension Plan as a benefit service for purposes of determining the amount
of such benefits shall, if recommended by the Company's Retirement and Benefit
Plans Administration Committee and approved by the Committee in connection with
the employee's commencement of employment with the Company or another Employer,
be entitled to a benefit under Section A.4 of this Nonqualified Pension Plan.
A.3 Section 415/401(a)(17) Benefit.
The benefit under this Section A.3 to which a Participant or Beneficiary
shall be entitled shall be an amount equal to the excess, if any, of the amount
described in paragraph (a) of this Section A.3 over the amount described in
paragraph (b) of this Section A.3:
(a) The amount of benefit to which he would be entitled under the Pension
Plan if such benefit were computed without giving any effect to the limitations
imposed by Code Section 415 or by Code Section 401(a)(17).
(b) The amount of benefit to which he is entitled under the Pension Plan.
The amount so determined shall be subject to such adjustments as the Committee
may from time to time deem appropriate to reflect any changes in the application
of the limitations imposed by Code Section 415 and/or Code Section 401(a)(17)
with respect to the computation of benefits under the Pension Plan.
A.4 Deferred Compensation Benefit.
The benefit under this Section A.4 to which a Participant or Beneficiary
shall be entitled shall be an amount equal to the excess, if any, of the amount
described in paragraph (a) of this Section A.4 over the amount described in
paragraph (b) of this Section A.4:
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(a) The aggregate amount of benefit to which the Participant would be
entitled under the Pension Plan and under Section A.3 of this Nonqualified
Pension Plan if (i) the Participant had not elected to participate in the
Nonqualified Savings Plan, and/or (ii) in the case of a Participant or
Beneficiary described in paragraph (c) of Section A.1 or A.2, as applicable, any
period of such Participant's employment with the Company or its subsidiaries
prior to the date the Participant first became a Participant in the Pension Plan
was treated as benefit service for purposes of determining the amount of such
benefit under the Pension Plan.
(b) The aggregate amount of benefit to which he is entitled under the
Pension Plan and under Section A.3 of this Nonqualified Pension Plan.
A.5 Payment.
The benefit to which a Participant or Beneficiary may be entitled under
this Nonqualified Pension Plan shall be determined solely by reference to the
amount, if any, credited to the reserve established and maintained for the
benefit of such Participant or Beneficiary under Section A.7 hereof, and such
benefit shall be payable in an immediate lump sum to the Participant upon the
Participant's retirement or other termination of employment or to the
Beneficiary upon the death of the Participant. Amounts reserved for a
Participant shall not be paid until a Participant terminates employment with the
Company and all subsidiaries, retires, dies or becomes disabled, whichever event
shall occur first. The value of the Participant's reserves under this Plan
shall be determined as of the Valuation Date next following such termination of
employment, retirement, death or disability. Such value shall be paid to him or
his beneficiaries in five annual installments commencing on the Payment Date
next following such Valuation Date; provided, however, that if a Participant has
requested that the value of his reserves be paid in a single sum or in up to ten
annual installments, in accordance with such prior written notice requirements
as the Committee may adopt in its sole discretion, then the value of his
reserves shall be paid in such other manner or time. Notwithstanding the
preceding provisions of this Section A.5, a Participant may request from the
Committee a different form and commencement date for the payment of the value of
his reserves, including, but not limited to an immediate distribution of the
value of his reserves in a single sum as promptly as practicable after his
termination of employment. The Committee shall have the sole authority to
approve such immediate distribution. Any immediate distribution shall be equal
to the value of the Participant's reserves as of the last day of the calendar
quarter in which the later of the termination of employment or approval of the
request occurs and shall be paid as promptly as practicable but in no event
later than 45 days after such last day of the calendar quarter. Notwithstanding
the foregoing, the Committee, in its sole discretion, shall establish a
commencement date for the payment of benefits, the deductibility of which may be
limited by Code
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Section 162(m), as the earliest Payment Date upon which such limitations would
not apply.
A.6 Vesting.
A Participant's interest in the benefit determined under Section A.3 and/or
A.4 above shall become nonforfeitable at such times and in such percentages as
the Participant's benefit under the Pension Plan.
A.7 Distribution of Accrued Benefit.
(a) Effective with the end of the 1992 Plan Year and each Plan Year
thereafter, each Participant hereunder who is employed by the Company or any of
its subsidiaries as of the last day of such Plan Year, or whose employment
terminated during the Plan Year due to retirement under the Pension Plan, shall,
in lieu of any other benefit provided under this Nonqualified Pension Plan, be
entitled to receive a lump sum payment equal to the amount by which the
Actuarial Equivalent single sum value of the benefit to which the Participant
would be entitled under the terms of this Nonqualified Pension Plan as if the
Participant's termination of employment occurred on the last day of the Plan
Year or such earlier date of retirement (without regard to this Section A.7),
reduced by the Actuarial Equivalent single sum value as of such December 31 of
payments theretofore made to the Participant or credited to a reserve for the
benefit of the Participant pursuant to this Section A.7. Payments to
Participants pursuant to this Section A.7(a) shall be made not later than the
March 15 following the last day of the Plan Year with respect to which the
determination of the payment due is made, or as soon as practicable thereafter.
(b) Effective with the end of the 1993 Plan Year, the lump sum payment, if
any, payable to a Participant pursuant to paragraph (a) above shall not be paid
to such Participant as described in said paragraph (a), but shall instead be
credited and payable to the Participant or his Beneficiary in accordance with
this paragraph (b):
(1) The amount of the lump sum payment, if any, attributable to
the 1993 Plan Year shall be credited to a reserve
established on the financial records of the Company in the
name of the Participant. Such amount shall be credited to
the reserve as of March 31, 1994. This reserve shall be
credited with earnings in accordance with Section A.8 below,
and payable to the Participant or his Beneficiary at the
time and in the manner prescribed by paragraph (a) above.
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(2) The amount of the lump sum payment, if any, attributable to
the 1994 Plan Year and each Plan Year thereafter, shall be
paid to the Participant in accordance with paragraph (a)
above unless the Participant has elected to have such amount
credited to the reserve described in subparagraph (1) above.
The election to have such amount credited to the reserve
shall be made on such form and in such manner as the
Committee shall prescribe and shall be filed with the
Committee prior to the beginning of the Plan Year to which
the amount is attributable. Once made, an election to have
the lump sum payment amount credited to the reserve shall
remain in effect for subsequent Plan Years unless the
election is revoked by the Participant prior to the
beginning of the applicable Plan Year. Any such revocation
shall be made on the form and in the manner prescribed by
the Committee. In the case of a Participant for whom it was
not foreseen prior to the beginning of the Plan Year that
would become a Participant in this Nonqualified Pension Plan
with respect to such Plan Year, the election to have the
lump sum payment amount attributable to that Plan Year
credited to a reserve may be made by such Participant at
such time and in such manner as specified by the Committee,
but such election shall in all cases be made prior to the
last day of the Plan Year.
(c) Actuarial Equivalent amounts pursuant to this Section A.7 shall be
determined in the same manner as such Actuarial Equivalent single sum value
would be determined under the Pension Plan.
A.8 Earnings Credit.
Effective with the end of the 1993 Plan Year, the Company shall, at the end
of each calendar quarter beginning with the second quarter of 1994, credit each
reserve established and maintained pursuant to Section A.7 above with earnings
pursuant to this Section A.8:
(a) Prior to the establishment of a Nonqualified Trust, the earnings to be
credited to the reserve shall be based upon the balance of the reserve as of the
first day of such calendar quarter and an interest rate for the quarter
equivalent to the rate which is the average of the prime rate as of the first
and last business days of the quarter as reported by The Wall Street Journal
(Midwest Edition).
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(b) Upon the establishment of a Nonqualified Trust, the earnings to be
credited to the reserve from time to time shall reflect the earnings, losses,
appreciation and depreciation on the assets held in the Nonqualified Trust which
are attributable to the reserve established for the Participant pursuant to
Section A.7 above.
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FIRST MIDWEST BANCORP, INC.
NONQUALIFIED PENSION PLAN, NONQUALIFIED SAVINGS
AND PROFIT SHARING PLAN AND
NONQUALIFIED EMPLOYEE STOCK OWNERSHIP PLAN
------------------------------------------
PART B
Nonqualified Savings and Profit Sharing Plan
--------------------------------------------
B.1 Definitions.
Except as defined otherwise herein, all words with initial capitals
shall have the same meaning as in the Savings Plan, whether or not such words
are capitalized in the Savings Plan.
(a) "Excess Profit Sharing Contribution" shall mean the amount of
Profit Sharing Contribution with respect to a Plan Year which, if contributed by
the Company or an Employer would: (i) constitute an Annual Addition in excess
of the Section 415 Limitation, (ii) be made with respect to Pay determined
without regard to the Compensation Limitation, Excess Savings Contribution or
Supplemental Savings Contribution under this Plan, and/or (iii) with respect to
a Participant described in paragraph (d)(iv) of Section B.1, be made with
respect to Pay attributable to an Eligibility Period which is not otherwise
treated as Pay under the Savings Plan.
(b) "Excess Savings Contribution" shall mean the aggregate amount of
the Before-Tax Contributions during a Plan Year (up to 10% of Pay during the
Plan Year determined without regard to the Compensation Limitation), and,
beginning January 1, 1998, the amount of Employer Matching Contribution which
would be made with respect to such Before-Tax Contributions during a Plan Year,
which if contributed by a Savings Participant or the Company or an Employer
under the Savings Plan would constitute: (i) Annual Additions in excess of the
limitations placed on Annual Additions to the Savings Plan by ERISA and Section
415 of the Internal Revenue Code of 1986 ("Code") or any successor thereto (the
"Section 415 Limitation"), (ii) contributions in excess of the limitations on
the maximum amount of compensation which may be considered Pay in determining
the amount which may be contributed to the Savings Plan under Section 401(a)(17)
of the Code (the "Compensation Limitation"), (iii) contributions in excess of
the limitations on amounts which may be excluded from federal income taxation
under Section 402(g) of the Code (the "$10,000 Limitation"), and/or (iv) with
respect to Participant described in paragraph (d)(iv) of Section B.1,
contributions with respect to Pay attributable to an Eligibility Period which is
not otherwise treated as Pay under the Savings Plan.
14
(c) "Nonqualified Plan" shall mean the First Midwest Bancorp
Nonqualified Pension Plan, as amended and restated from time to time, or any
successor plan thereto.
(d) "Participant" shall mean an employee of the Company or another
Employer whose participation in or contributions on his behalf to the Savings
Plan are limited by: (i) the Section 415 Limitation, (ii) the Compensation
Limitation, (iii) the $10,000 Limitation, and/or (iv) application of the
Eligibility Period under the Savings Plan, provided that this paragraph (d)(iv)
shall only apply to the extent recommended by the Company's Retirement and
Benefit Plans Administration Committee and approved by the Committee in
connection with the employee's commencement of employment with the Company or
another Employer, and for whom benefits under this Nonqualified Savings Plan
will be accrued.
(e) "Pay" shall mean Considered Compensation (determined before
application of the Compensation Limitation or the amount of Excess Savings
Contribution or the amount of Supplemental Savings Contribution, and/or in the
case of a Participant described in paragraph (d)(iv) of Section B.1, application
of the Eligibility Period) excluding bonuses and any other payments of a similar
nature with respect to a Savings Participant and inclusive of bonuses and any
other payments of a similar nature with respect to a Profit Sharing Participant
and a Supplemental Savings Participant.
(f) "Payment Date" shall mean March 1 of each calendar year.
(g) "Profit Sharing Participant" shall mean a Participant with respect
to whom Excess Profit Sharing Contributions are made during a Plan Year.
(h) "Savings Participant" shall mean a Participant in the Savings Plan
to the extent of his participation in the Savings Plan.
(i) "Supplemental Savings Contribution" shall mean the amount of Pay
which a Supplemental Savings Participant elects to defer as an additional
savings contribution under this Plan.
(j) "Supplemental Savings Participant" shall mean an employee of the
Company or another Employer who has been identified by the Committee as eligible
to make Supplemental Savings Contributions and who elects to make such
Contributions.
(k) "Valuation Date" shall mean December 31 of each calendar year.
15
B.2 Participation.
(a) Savings Participants. Except as provided below, prior to the
beginning of the calendar year in which it is estimated that Excess Savings
Contributions would be made to the Savings Plan by or on behalf of a Savings
Participant, the Company shall notify the Savings Participant that some or all
of his contributions to the Savings Plan, or those made on his behalf, shall
cease when such contributions equal the $10,000 Limitation, Section 415
Limitations and/or his Pay equals the Compensation Limitation. The Savings
Participant shall have the right to elect in writing to defer receipt of the
portion of his Pay that would constitute Excess Savings Contributions to be made
to the Savings Plan. If the Savings Participant elects to defer receipt of such
portion of his Pay, additions to this Plan shall be made as specified in Section
B.3 hereof. Once made, the election shall remain in effect until revoked or
modified by the Savings Participant. The election shall be made in a manner
prescribed by the Committee. In the case of Savings Participants for whom it
was not foreseen that they would become Savings Participants prior to the year
in which they became Savings Participants, the required election shall be made
at such time and in such manner as specified by the Committee but such election
shall in all such cases be made prior to the payroll period to which the
deferral of Pay relates. If a Savings Participant revokes or modifies his
election to participate in this Plan, his revocation or modification must be
submitted to the Secretary of the Committee in writing prior to the beginning of
the month in which the revocation or modification is to take effect. If a
Savings Participant revokes his election to participate in this Plan, he may not
re-enroll as an active Participant during the remainder of the calendar year in
which his revocation becomes effective. Any election by a Savings Participant
to re-enroll as an active Savings Participant must be submitted in writing to
the Secretary of the Committee prior to the beginning of the calendar year in
which he wishes to re-enroll.
(b) Profit Sharing Participants. A Participant shall be a Profit
Sharing Participant with respect to any Plan year in which Excess Profit Sharing
Contribution arises with respect to such Participant.
(c) Supplemental Savings Participants. Except as provided below, prior
to the beginning of each calendar year beginning with 1998, the Committee shall
identify those eligible employees who are eligible to elect to make Supplemental
Savings Contributions during such calendar year. Each Supplemental Savings
Participant shall have the right to elect in writing to defer receipt of a
portion of his Pay, provided that the portion of such Supplemental Savings
Contribution which represents deferred base salary shall not, when added to his
Excess Savings Contribution for the year, exceed 20% of his base salary for
such calendar year, and, provided, further, that the portion of such
Supplemental Savings Contribution which represents deferred annual bonus shall
not exceed 20% of the annual bonus to be
16
received during such year. If the Supplemental Savings Participant elects to
defer receipt of his Pay, additions to this Plan shall be made as specified in
Section B.3 hereof. Once made, the election shall remain in effect until revoked
or modified by the Supplemental Savings Participant. The election shall be made
in a manner prescribed by the Committee. In the case of an eligible employee who
first becomes eligible to make Supplemental Savings Contributions for a calendar
year during such calendar year, the required election shall be made at such time
and in such manner as specified by the Committee but such election shall in all
such cases be made prior to the payroll period to which the deferral of Pay
relates. If a Supplemental Savings Participant revokes or modifies his election
to participate in this Plan, his revocation or modification must be submitted to
the Secretary of the Committee in writing prior to the beginning of the month in
which the revocation or modification is to take effect. If a Supplemental
Savings Participant revokes his election to make Supplemental Savings
Contributions, he may not re-enroll as an active Supplemental Savings
Participant during the remainder of the calendar year in which his revocation
becomes effective. Any election by a Supplemental Savings Participant to re-
enroll as an active Supplemental Savings Participant must be submitted in
writing to the Secretary of the Committee prior to the beginning of the calendar
year in which he wishes to re-enroll, and may re-enroll only to the extent he
continues to be an employee eligible to make Supplemental Savings Contributions
for such calendar year.
B.3 Treatment of Excess Savings Contributions and Supplemental Savings
Contributions.
When a Participant's Before-Tax Contribution made on his behalf of the
Company or an Employer would become Excess Savings Contributions, no further
such contributions shall be made to the Savings Plan. If the Savings
Participant elects to participate in this Plan, his salary or wages shall be
reduced by the amount of such Excess Savings Contributions represented by such
Before-Tax Contributions, and there shall be established in the name of the
Participant a reserve on the financial records of the Company to which the
amounts of such Excess Savings Contributions and the amount of the Excess
Savings Contribution representing Employer Matching Contributions with respect
to such Before-Tax Contributions, shall be credited. When a Supplemental
Savings Participant has elected to participate in the Supplemental Savings
Contributions under this Plan, his salary and/or bonus shall be reduced by the
amount of such Supplemental Savings Contributions and there shall be established
a reserve on the financial records of the Company to which the amount of such
Supplemental Savings Contributions shall be credited. Amounts to be credited to
the reserve under this Section B.3 shall be credited during the month in which
such Excess Savings Contributions would otherwise have been contributed to the
Savings Plan or the Pay represented by such Supplemental Savings Contribution
would have
17
been received. This reserve shall be credited with interest in accordance with
Section B.5 below.
B.4 Treatment of Excess Profit Sharing Contributions.
When Profit Sharing Contributions to be made on behalf of a Savings
Participant would be Excess Profit Sharing Contributions, no further such
contributions shall be made to the Savings Plan. There shall be established a
reserve in the name of the Participant on the financial records of the Company
to which the amounts equal to the amount of such Excess Profit Sharing
Contributions shall be credited as of the last day of the Plan Year. This
reserve shall be credited with earnings in accordance with Section B.5 below.
B.5 Earnings Credit.
Effective with the end of the 1993 Plan Year, the Company shall at the
end of each calendar quarter beginning with the first quarter of 1994 credit
each reserve established and maintained pursuant to Section B.3 or B.4 above
with earnings pursuant to this Section B.5, until such time as complete payment
of the amount of such reserve has been made:
(a) Prior to the establishment of a Nonqualified Trust, the earnings
to be credited to the reserve shall be based upon the balance of the reserve as
of the first day of such calendar quarter and an interest rate for the quarter
equivalent to the rate which is the average of the prime rate as of the first
and last business days of the quarter as reported by The Wall Street Journal
(Midwest Edition).
(b) Upon the establishment of a Nonqualified Trust, the earnings to be
credited to the reserve from time to time shall reflect the earnings, losses,
appreciation and depreciation on the assets held in the Nonqualified Trust which
are attributable to the reserve established for the Participant pursuant to
Section B.3 or B.4 above.
B.6 Loans Prohibited.
No loans shall be permitted to any Participant of any amounts reserved
by the Company for his account under this Plan. No amount reserved by the
Company for a Participant under this Plan shall be considered as part of the
Participant's Savings Plan account balance for purposes of determining the
maximum loan that can be borrowed from the Savings Plan.
18
B.7 Vesting.
A Participant's interest in the reserve established for him which
represents his Excess Savings Contribution and/or Supplemental Savings
Contribution shall be nonforfeitable. A Participant's interest in the reserves
established for him representing his excess Profit Sharing Contributions shall
become nonforfeitable at such times and in such percentages as they would had
they been made to the Savings Plan. Except to the extent otherwise provided by
the Committee, even though a Participant's interests in this Plan shall become
nonforfeitable, such Participant shall remain a general creditor of the Company
with respect to such reserves and shall not have any security or other interest
in any assets of the Company, or any other Employer, due to or arising from the
fact that some or all of his interest in the reserve shall have become
nonforfeitable.
B.8 Savings and Profit Sharing Plan Percentage of Pay Changes.
A Participant may change the portion of his Pay that will be deferred
under this Plan as Excess Savings Contributions by changing the percentage of
his Pay he wishes to contribute to the Savings Plan. The change (including the
effective date of the change) shall be governed by the relevant Savings Plan
provisions.
B.9 Distribution at Retirement or Termination.
Amounts reserved for a Participant shall not be paid until a Participant
terminates employment with the Company and all subsidiaries, retires, dies or
becomes disabled, whichever event shall occur first. The value of the
Participant's reserves under this Plan shall be determined as of the Valuation
Date next following such termination of employment, retirement, death or
disability. Such value shall be paid to him or his beneficiaries in five annual
installments commencing on the Payment Date next following such Valuation Date;
provided, however, that if a Participant has requested that the value of his
reserves be paid in a single sum or in up to ten annual installments, in
accordance with such prior written notice requirements as the Committee may
adopt in its sole discretion, then the value of his reserves shall be paid in
such other manner or time. Notwithstanding the preceding provisions of this
Section B.9, a Participant may request from the Committee a different form and
commencement date for the payment of the value of his reserves, including, but
not limited to an immediate distribution of the value of his reserves in a
single sum as promptly as practicable after his termination of employment. The
Committee shall have the sole authority to approve such immediate distribution.
Any immediate distribution shall be equal to the value of the Participant's
reserves as of the last day of the calendar quarter in which the later of the
termination of employment or approval of the request occurs and shall be paid as
promptly as practicable but in no event later than 45 days after such last day
of the calendar
19
quarter. Notwithstanding the foregoing, the Committee, in its sole discretion,
shall establish a commencement date for the payment of benefits, the
deductibility of which may be limited by Code Section 162(m), as the earliest
Payment Date upon which such limitations would not apply.
B.10 Distribution of Amounts Attributable to Excess Profit Sharing
Contributions.
Notwithstanding anything in this Nonqualified Savings and Profit Sharing
Plan to the contrary:
(a) The portion of the amount to be credited to a Participant hereunder as
an Excess Profit Sharing Contribution for the Plan Year then ended pursuant to
Section B.4 which would be nonforfeitable as of the end of such Plan Year shall,
in lieu of crediting such amount to a reserve under said Section B.4, be paid to
the Participant within 45 days or as soon as practicable thereafter of the
December 31 with respect to which such amount was determined, together with that
portion of the reserves for the Participant as of such December 31 which are
attributable to the portion of his Excess Profit Sharing Contributions
(including interest credited thereon) which became nonforfeitable during such
Plan Year, but had not theretofore distributed.
(b) Effective with the end of the 1993 Plan Year, the amount, if any,
payable to a Participant pursuant to paragraph (a) above shall not be paid to
such Participant as described in said paragraph (a) if all or any portion
thereof is attributable to amounts other than Annual Additions in excess of the
Section 415 Limitation, but shall instead be credited and payable to the
Participant or his Beneficiary in accordance with this paragraph (b):
(1) The amount, if any, attributable to the 1993 Plan Year shall
be credited to a reserve contemplated by Section B.4. Such
amount shall be credited to the reserve as of December 31,
1993.
(2) The amount, if any, attributable to the 1994 Plan Year and
each Plan Year thereafter, shall be paid to the Participant
in accordance with paragraph (a) above unless the
Participant has elected to have such amount credited to the
reserve described in subparagraph (1) above. The election
to have such amount credited to the reserve shall be made on
such form and in such manner as the Committee shall
prescribe and shall be filed with the Committee prior to the
beginning of the Plan Year to which the amount is
attributable. Once made, an election to have such amount
20
credited to the reserve shall remain in effect for
subsequent Plan Years unless the election is revoked by the
Participant prior to the beginning of the applicable Plan
Year. Any such revocation shall be made on the form and in
the manner prescribed by the Committee. In the case of a
Participant for whom it was not foreseen prior to the
beginning of the Plan Year that he would become a Savings
Participant described in this paragraph (b) with respect to
such Plan Year, the election to have the amount attributable
to that Plan Year credited to a reserve may be made by such
Participant at such time and in such manner as specified by
the Committee, but such election shall in all cases be made
prior to the last day of the Plan Year.
21
FIRST MIDWEST BANCORP, INC.
NONQUALIFIED PENSION PLAN, NONQUALIFIED SAVINGS
AND PROFIT SHARING PLAN AND
NONQUALIFIED EMPLOYEE STOCK OWNERSHIP PLAN
------------------------------------------
PART C
Nonqualified ESOP
-----------------
C.1 Definitions.
Except as defined otherwise herein, all words with initial capitals
shall have the same meaning as in the ESOP, whether or not such words are
capitalized in the Savings Plan.
(a) "ESOP Participant" shall mean a Participant with respect to whom
Excess ESOP Contributions are made during a Plan Year.
(b) "Excess ESOP Contribution" shall mean the amount of Employer
Contribution with respect to a Plan Year which, if contributed by the Company or
an Employer under the ESOP would: (i) constitute an Annual Addition in excess
of the Section 415 Limitation, (ii) be made with respect to Pay determined
without regard to the Code Section 401(a)(17) limitation on Pay set forth in the
ESOP or Excess Savings Contributions under the Nonqualified Savings Plan; and/or
(iii) be made with respect to Pay attributable to an Eligibility Period which is
not otherwise considered Pay under the ESOP, provided that this paragraph
(b)(iii) shall only apply to the extent recommended by the Company's Retirement
and Benefit Plans Administration Committee and approved by the Committee in
connection with the employee's commencement of employment with the Company or
another Employer.
(c) "Pay" shall mean Compensation (determined before application of
the Compensation Limitation, the amount of Excess Savings Contributions and/or
Supplemental Savings Contributions under the Nonqualified Savings Plan or, in
the case of a Participant described in paragraph (b)(iii) of this Section C.1,
before application of any exclusion of Compensation earned during an Eligibility
Period).
(d) "Payment Date" shall mean March 1 of each calendar year.
(e) "Valuation Date" shall mean December 31 of each calendar year.
22
C.2 Participation.
A Participant shall be an ESOP Participant with respect to any Plan
Year in which Excess ESOP Contribution arises with respect to such Participant.
C.3 Treatment of Excess ESOP Contributions.
When Employer Contributions to be made on behalf of an ESOP Participant
would be Excess ESOP Contributions, no further such contributions shall be made
to the ESOP. There shall be established a reserve in the name of the Participant
on the financial records of the Company to which the amounts equal to the amount
of such Excess ESOP Contributions shall be credited as of the last day of the
Plan Year. This reserve shall be credited with interest in accordance with
Section C.4 below.
C.4 Earnings Credit.
Effective with the end of the 1993 Plan Year, the Company shall at the
end of each calendar quarter beginning with the first quarter of 1994 credit
each reserve established and maintained pursuant to Section C.3 above with
earnings pursuant to this Section C.4, until such time as complete payment of
the amount of such reserve has been made:
(a) Prior to the establishment of a Nonqualified Trust, the earnings
to be credited to the reserve shall be based upon the balance of the reserve as
of the first day of such calendar quarter and an interest rate for the quarter
equivalent to the rate which is the average of the prime rate as of the first
and last business days of the quarter as reported by The Wall Street Journal
(Midwest Edition).
(b) Upon the establishment of a Nonqualified Trust the earnings to be
credited to the reserve from time to time shall reflect the earnings, losses,
appreciation and depreciation on the assets held in the Nonqualified Trust which
are attributable to the reserve established for the Participant pursuant to
Section C.3 above.
C.5 Vesting.
A Participant's interest in the reserve established for him which
represents his Excess ESOP Contribution shall be nonforfeitable. Except to the
extent otherwise provided by the Committee, even though a Participant's interest
in this Plan shall become nonforfeitable, such Participant shall remain a
general creditor of the Company with respect to such reserves and shall not have
any security or other interest in any assets of the Company, or any other
Employer, due to or arising from
23
the fact that some or all of his interest in the reserve shall have become
nonforfeitable.
C.6 Distribution at Retirement or Termination.
Amounts reserved for a Participant shall not be paid until a Participant
terminates employment with the Company and all subsidiaries, retires, dies or
becomes disabled, whichever event shall occur first. The value of the
Participant's reserves under this Plan shall be determined as of the Valuation
Date next following such termination of employment, retirement, death or
disability. Such value shall be paid to him or his beneficiaries in five annual
installments commencing on the Payment Date next following such Valuation Date;
provided, however, that if a Participant has requested that the value of his
reserves be paid in a single sum or in up to ten annual installments, in
accordance with such prior written notice requirements as the Committee may
adopt in its sole discretion, then the value of his reserves shall be paid in
such other manner or time. Notwithstanding the preceding provisions of this
Section C.6, a Participant may request from the Committee a different form and
commencement date for the payment of the value of his reserves, including, but
not limited to an immediate distribution of the value of his reserves in a
single sum as promptly as practicable after his termination of employment. The
Committee shall have the sole authority to approve such immediate distribution.
Any immediate distribution shall be equal to the value of the Participant's
reserves as of the last day of the calendar quarter in which the later of the
termination of employment or approval of the request occurs and shall be paid as
promptly as practicable but in no event later than 45 days after such last day
of the calendar quarter. Notwithstanding the foregoing, the Committee, in its
sole discretion, shall establish a commencement date for the payment of
benefits, the deductibility of which may be limited by Code Section 162(m), as
the earliest Payment Date upon which such limitations would not apply.
C.7 Distribution of Amounts Reserved.
Notwithstanding anything in this Nonqualified ESOP to the contrary:
(a) The amount which would have been credited to a Participant hereunder as
an Excess ESOP Contribution for the Plan Year then ended pursuant to Section C.3
shall, in lieu of crediting such amount to a reserve under said Section C.3, be
paid to the Participant within 45 days of the December 31 with respect to which
such amount was determined or as soon as practicable thereafter.
(b) Effective with the end of the 1993 Plan Year, the amount, if any,
payable to a Participant pursuant to paragraph (a) above shall not be paid to
such Participant as described in such paragraph (a) if all or any portion
thereof is attributable to amounts other than Annual Additions in excess of the
Section 415
24
Limitation, but shall instead be credited and payable to the Participant or his
Beneficiary in accordance with this paragraph (b):
(1) The amount, if any, attributable to the 1993 Plan Year shall
be credited to a reserve contemplated by Section C.3. Such
amount shall be credited to the reserve as of December 31,
1993.
(2) The amount, if any, attributable to the 1994 Plan Year and
each Plan Year thereafter, shall be paid to the Participant
in accordance with paragraph (a) above unless the
Participant has elected to have such amount credited to the
reserve described in subparagraph (1) above. The election
to have such amount credited to the reserve shall be made on
such form and in such manner as the Committee shall
prescribe and shall be filed with the Committee prior to the
beginning of the Plan Year to which the amount is
attributable. Once made, an election to have such amount
credited to the reserve shall remain in effect for
subsequent Plan Years unless the election is revoked by the
Participant prior to the beginning of the applicable Plan
Year. Any such revocation shall be made on the form and in
the manner prescribed by the Committee. In the case of a
Participant for whom it was not foreseen prior to the
beginning of the Plan Year that he would become an ESOP
Participant described in this paragraph (b) with respect to
such Plan Year, the election to have the amount attributable
to that Plan Year credited to a reserve may be made by such
Participant at such time and in such manner as specified by
the Committee, but such election shall in all cases be made
prior to the last day of the Plan Year.
* * * * *
The foregoing First Midwest Bancorp, Inc. Nonqualified Retirement Plan, as
Amended and Restated Effective as of January 1, 1998, is hereby adopted and
approved by the undersigned officer of the Company, duly authorized by actions
of the Board of Directors of the Company on November 19, 1997 and February 18,
1998.
DONALD J. SWISTOWICZ
---------------------------------
Executive Vice President
25