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Exhibit 10.5 - Material Contract
HORIZON BANCORP
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Effective January 1, 1993
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HORIZON BANCORP SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
TABLE OF CONTENTS
ARTICLE PAGE
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INTRODUCTION 1
I. DEFINITIONS 1
1.1 Adjustment 1
1.2 Adjustment Factor 1
1.3 Board 1
1.4 Code 1
1.5 Committee 2
1.6 Company 2
1.7 Compensation 2
1.8 Effective Date 2
1.9 Employee 2
1.10 Excess Matching Contributions 2
1.11 Excess Matching Contributions Account 2
1.12 Employer Supplemental Contributions 3
1.13 Employer Supplemental Contributions
Account 3
1.14 Excess Salary Redirection Contributions 3
1.15 Excess Salary Redirection Contributions
Account 3
1.16 Individual Account 3
1.17 Matching Contributions 3
1.18 Matching Contributions Account 3
1.19 Participant 3
1.20 Plan 3
1.21 Plan Year 4
1.22 Salary Redirection Contributions 4
1.23 Salary Redirection Contributions Account 4
1.24 Thrift Plan 4
1.25 Total and Permanent Disability 4
II. ELIGIBILITY AND PARTICIPATION 4
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III. CONTRIBUTIONS AND ALLOCATIONS 4
3.1 Excess Salary Redirection Contributions 4
3.2 Excess Matching Contributions 6
3.3 Employer Supplemental Contributions 7
3.4 Allocation of Adjustments 8
3.5 Allocation of Forfeitures 8
IV. FUNDING OF BENEFITS 9
4.1 Unsecured Contractual Rights 9
4.2 Trust 9
V. DISTRIBUTIONS 9
5.1 Forfeitures on Termination of Service 9
5.2 Year of Service 10
5.3 Time of Payment of Benefits 10
5.4 Method of Payment 10
5.5 Death of the Participant and Beneficiary
Designation 10
VI. PLAN ADMINISTRATION 11
6.1 Company11
6.2 Benefits Committee 11
6.3 Claims Procedure 12
6.4 Records14
6.5 No Liability 14
6.6 Indemnity of Committee Members 14
6.7 Discretionary Powers and Authority of the
Company and Committee 14
VII. AMENDMENT AND TERMINATION OF THE PLAN 15
7.1 Amendment of the Plan 15
7.2 Termination of the Plan 15
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VIII. MISCELLANEOUS 15
8.1 Governing Law 15
8.2 Headings and Gender 15
8.3 Administration Expenses 15
8.4 Participant's Rights; Acquittance 15
8.5 Spendthrift Clause 15
8.6 Counterparts 16
8.7 No Enlargement of Employment Rights 16
8.8 Limitations on Liability 16
8.9 Incapacity of Participant or Beneficiary 16
8.10 Corporate Successors 16
SIGNATURES 17
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INTRODUCTION
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Effective January 1, 1993, Horizon Bancorp (the "Company") adopts the
Horizon Bancorp Supplemental Executive Retirement Plan (the "Plan") as set forth
herein.
The purpose of this Plan is to permit a select group of management or
highly compensated employees of the Company or its subsidiaries who participate
in the Horizon Bancorp Employees' Thrift Plan (the "Thrift Plan") to elect to
defer compensation from the Company or receive contributions from the Company
without regard to the limitations imposed by the Internal Revenue Code of 1986,
as amended (the "Code") on the benefits which may accrue to such employees under
the Thrift Plan. It is the intention of the Company that the Plan shall
constitute an unfunded arrangement maintained for the purpose of providing
deferred compensation for a select group of management or highly compensated
employees for federal income tax purposes and for purposes of Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA").
ARTICLE I
DEFINITIONS
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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" means the amounts of earnings or losses credited to a
Participant's Individual Account pursuant to Section 3.4 for each Plan Year. The
amount of interest credited shall be determined based on the investment earnings
under the funding method(s) used by the Company pursuant to Section 4.2.
However, if no such method is used, interest shall be credited to a
Participant's Individual Account at a rate equal to the average twenty-six (26)
week U.S. Treasury Bill rate published in the WALL STREET JOURNAL as in effect
as of the first business day of each calendar month.
1.2 "Adjustment Factor" means the cost of living adjustment factor
prescribed by the Secretary of the Treasury under Section 415(d) of the Code, as
applied to such items and in such manner as the Secretary of the Treasury shall
provide.
1.3 "Board" means the Board of Directors of the Company.
1.4 "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.
1.5 "Committee" means the Benefits Committee described in Section
6.2 of the Plan.
1.6 "Company" means Horizon Bancorp.
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1.7 "Compensation" means a Participant's wages, salaries and fees for
professional services and other amounts received (without regard to whether or
not an amount is paid in cash) paid during a Plan Year for personal services
actually rendered in the course of employment with the Company to the extent
that the amounts are includable in gross income including, but not limited to,
commissions paid salesmen, compensation for services on the basis of a
percentage of profits, commissions on insurance premiums, tips, bonuses, fringe
benefits, reimbursements, overtime and expense allowances. Compensation shall
include (i) elective contributions to the Plan or any other plan maintained by
the Company on the Employee's behalf, (ii) compensation deferred under an
eligible deferred compensation plan within the meaning of Section 457(b)
(relating to deferred compensation plans maintained by state and local
governments and tax-exempt organizations), and (iii) employee contributions
(under governmental plans) described in Section 141(h)(2) of the Code that are
picked up by the employing unit and thus are treated as company contributions.
"Elective contributions" are amounts excludable from the Employee's gross income
under Section 402(a)(8) of the Code (relating to an arrangement under Section
401(k)), Section 402(h) of the Code (relating to a simplified employee pension
plan), Section 125 of the Code (relating to a cafeteria plan), Section 403(b) of
the Code (relating to a tax-sheltered annuity), or under this Plan. Compensation
taken into account for all purposes under the Plan shall not be limited as
provided in Section 401(a)(17) of the Code to the first Two Hundred Thousand
Dollars ($200,000), as adjusted by the Adjustment Factor, of any Participant's
Compensation.
1.8 "Effective Date" means January 1, 1993.
1.9 "Employee" means any person who is employed by the Company.
1.10 "Excess Matching Contributions" means contributions made to the
Plan by the Company for the Plan Year, at the discretion of the Company, and
allocated to a Participant's Individual Account by reason of the Participant's
Excess Salary Redirection Contributions contributed to the Plan pursuant to
Section 3.1(a).
1.11 "Excess Matching Contributions Account" means that portion of a
Participant's Individual Account attributable to (a) Excess Matching
Contributions allocated to such Participant pursuant to Section 3.2 and (b) the
Participant's proportionate share, attributable to his Excess Matching
Contribution Account, of the Adjustments, reduced by any distributions from such
account pursuant to Article V.
1.12 "Employer Supplemental Contributions" means contributions made
to the Plan by the Company for the Plan Year, at the discretion of the Company,
pursuant to Section 3.3.
1.13 "Employer Supplemental Contributions Account" means that portion of
a Participant's Individual Account attributable to (a) Employer Supplemental
Contributions allocated to such Participant pursuant to Section 3.3 and (b) the
Participant's proportionate share, attributable to his Employer Supplemental
Contributions Account, of the Adjustments, reduced by any distributions from
such account pursuant to Article V.
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1.14 "Excess Salary Redirection Contributions" means contributions made
to the Plan pursuant to Section 3.1 by the Company, at the election of the
Participant, and at the discretion of the Company, in lieu of cash Compensation
under a Participation Agreement between the Participant and the Company.
1.15 "Excess Salary Redirection Contributions Account" means that
portion of a Participant's Individual Account attributable to (a) Excess Salary
Redirection Contributions allocated to such Participant pursuant to Section 3.1
and (b) the Participant's proportionate share, attributable to his Excess Salary
Redirection Contributions Account, of the Adjustments, reduced by any
distributions from such account pursuant to Article V.
1.16 "Individual Account" means the detailed record kept of the amounts
credited or charged to each Participant in accordance with the terms of the
Plan. Such Individual Account is comprised of whichever of the following are
applicable to a particular Participant: Excess Matching Contributions Account,
Excess Salary Redirection Contributions Account and Employer Supplemental
Contributions Account and any earnings (or losses) with respect thereto.
1.17 "Matching Contributions" means the matching contributions made to
the Thrift Plan by the Company for the Plan Year and allocated to a
Participant's Matching Contributions Account under the Thrift Plan by reason of
the Participant's Salary Redirection Contributions made thereunder.
1.18 "Matching Contributions Account" means the account established for
a Participant under the Thrift Plan to which Matching Contributions are made.
1.19 "Participant" means a salaried Employee of the Company or its
subsidiaries who is a Participant under the Thrift Plan and who becomes a
Participant pursuant to the provisions of Article II of the Plan.
1.20 "Plan" means the Horizon Bancorp Supplemental Executive Retirement
Plan.
1.21 "Plan Year" means the twelve (12) month period beginning
January 1 and ended December 31.
1.22 "Salary Redirection Contributions" means a Participant's
contributions made to the Thrift Plan by the Company at the election of the
Participant, in lieu of cash Compensation, pursuant to a salary redirection
agreement between the Participant and the Company and allocated to a
Participant's Salary Redirection Contributions Account under the Thrift Plan.
1.23 "Salary Redirection Contributions Account" means the account
established for a Participant under the Thrift Plan to which Salary Redirection
Contributions are allocated.
1.24 "Thrift Plan" means the Horizon Bancorp Employees' Thrift Plan, as
amended from time to time.
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1.25 "Total and Permanent Disability" or "Totally and Permanently
Disabled" means a disability as determined for purposes of the Federal Social
Security Act which qualifies the Participant for permanent disability insurance
payments in accordance with such Act. Disability for purposes of the Plan shall
not include any disability which is incurred while the Participant is on leave
of absence because of military or similar service and for which a governmental
pension is payable. The Committee may require subsequent proof of continued
disability, prior to the Participant's sixty-fifth (65th) birthday, at intervals
of not less than six (6) months. A minimal level of earnings in restricted
activity during any period of disability shall not disqualify a Participant from
receiving disability benefits for such period if the disabled Participant
receives disability benefits under the Social Security Act for the same period.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
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A management or highly compensated Employee of the Company or its
subsidiaries is eligible to participate in the Plan provided such Employee is
designated as a Participant by the Board in writing.
ARTICLE III
CONTRIBUTIONS AND ALLOCATIONS
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3.1 Excess Salary Redirection Contributions.
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(a) AMOUNT OF CONTRIBUTION. The Company shall credit, as
of each pay period, Excess Salary Redirection
Contributions on behalf of each executive who is a
Participant under the Plan for the Plan Year, such
percentage (or dollar amount) of such Participant's
Compensation as mutually agreed upon between the
Participant and the Company pursuant to the terms of a
Participation Agreement meeting the requirements of
Section 3.1(d) prior to the beginning of each Plan
Year. The Participant will elect in the Participation
Agreement to defer an overall percentage (or dollar
amount) of the Participant's Compensation which shall
represent the total amount of deferrals to both the
Thrift Plan and this Plan. The percentage (or dollar
amount) of the Participant's Excess Salary Redirection
Contributions shall be the percentage (or dollar
amount) remaining of the total percentage (or dollar
amount) elected on the Participation Agreement after
the maximum percentage (or dollar amount) of Salary
Redirection Contributions made to the Thrift Plan are
taken into account. Such percentage (or dollar amount)
shall remain in effect for each Plan Year thereafter
until or unless another percentage (or dollar amount)
is agreed upon by the Participant and the Company
prior to the beginning of the applicable Plan Year or
until the Company notifies the Participant, prior to
the beginning of such Plan Year, that the Participant
is no longer eligible for contributions under this
Section 3.1.
(b) The maximum percentage of a Participant's Compensation
that may constitute Excess Salary Redirection
Contributions for a Plan Year shall not, when added to
a Participant's Salary Redirection Contributions under
the Thrift Plan, exceed twenty-five percent (25%) of
such Participant's Compensation for such Plan Year.
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(c) TIMING OF CONTRIBUTIONS. Excess Salary Redirection
Contributions made for the benefit of a Participant for
any Plan Year shall be made to a Participant's Excess
Salary Redirection Contributions Account within the
time prescribed for making Salary Redirection
Contributions under the Thrift Plan.
(d) PARTICIPATION AGREEMENT. As a condition to the
Company's obligation to make an Excess Salary
Redirection Contribution for the benefit of a
Participant pursuant to subsection (a), the Participant
must execute a Participation Agreement with the Company
on such forms as prescribed by the Committee in which
it is agreed that the Company will redirect a portion
of the Participant's Compensation, as specified in the
Participation Agreement, during each pay period. The
Participation Agreement for any Plan Year must be
executed and delivered by the Participant and the
Company prior to the January 1 of the calendar year to
which the Participation 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 severe
financial hardship. Such waiver shall apply to the
portion of the calendar 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 purposes of this Section 3.1, an
unforeseeable emergency is a severe financial hardship
to a Participant resulting from a sudden and unexpected
illness or accident of the Participant or a dependent
of the Participant (as defined in Section 152(a) of the
Code), 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 the
Participant's assets, to the extent liquidation of such
assets would not itself cause severe financial
hardship; or (iii) by cessation of Salary Redirection
Contributions under the Thrift Plan. An unforeseeable
emergency shall not include the need to send a
Participant's child to college or the desire to
purchase a home.
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3.2 Excess Matching Contributions.
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(a) AMOUNT OF CONTRIBUTION. The Company may, but shall not
be required to, make Excess Matching Contributions
under the Plan. Excess Matching Contributions to be
made by the Company for the benefit of a Participant
for any Plan Year shall consist of two parts. The first
part shall be in an amount, as determined by the Board,
which does not exceed the difference between (i) and
(ii) below:
(i) The Matching Contributions which would have
been allocated to the Participant's Matching
Contributions Account under the Thrift Plan
for the Plan Year without giving effect to the
limitations on Compensation imposed by Section
401(a)(17) of the Code, the reductions
applicable to highly compensated employees due
to the discrimination tests set forth in
Section 401(k) and (m) of the Code, the
limitations on Salary Redirection
Contributions imposed by Section 402(g) of the
Code or the limitations on annual additions
imposed by Section 415 of the Code.
(ii) The amount of Matching Contributions actually
allocated to the Participant's Matching
Contributions Account under the Thrift Plan
for the Plan Year.
(b) In addition to the Excess Matching Contributions
specified in subsection (a), the Company may, as
determined by the Board, make an additional Excess
Matching Contribution in such amount as shall be
determined by the Board in its discretion.
(c) TIMING OF CONTRIBUTIONS. Excess Matching Contributions
made for the benefit of a Participant for any Plan Year
shall be credited to a Participant's Excess Matching
Contributions Account within the time prescribed for
making Matching Contributions under the Thrift Plan.
3.3 EMPLOYER SUPPLEMENTAL CONTRIBUTIONS. In addition to the Excess
Matching Contributions provided for in Section 3.2, the Employer may make
Employer Supplemental Contributions under the plan in accordance with the
provisions of subsections (a) and (b).
(a) AMOUNT OF CONTRIBUTION. The Company may, but shall not
be required to, contribute on behalf of a Participant
such amounts as the Board may in its discretion
determine from time to time to be advisable, which
amounts shall constitute the Employer Supplemental
Contributions under the Plan.
(b) TIMING OF CONTRIBUTIONS. Employer Supplemental
Contributions may be made by the Company at any time.
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3.4 Allocation of Adjustments.
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(a) INDIVIDUAL ACCOUNTS. The Committee shall establish and
maintain an 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. Each Individual Account shall be
comprised of whichever of the following are applicable
to a particular Participant: Excess Matching
Contributions Account, Excess Salary Redirection
Contributions Account and Employer Supplemental
Contributions Account.
(b) DETERMINATION OF ADJUSTMENTS. Following the allocations
made pursuant to Sections 3.1, 3.2, and 3.3, the
Committee shall determine the Adjustments for December
31 of the applicable Plan Year (and, in the event a
Participant is eligible for a distribution as provided
in Article V, for the last day of the month immediately
preceding the month the Participant terminates service
for any reason), and on such other dates as the
Committee deems advisable, by adding together all
income received, and realized and unrealized gains and
any realized and unrealized losses since the most
recent allocation of Adjustments to Participants'
Individual Accounts.
(c) ALLOCATION OF ADJUSTMENTS. The Adjustments shall be
allocated as of the end of the Plan Year to the
Individual Accounts of Participants who maintain a
credit balance in their Individual Accounts as of such
date in the same proportion that the balance of each
Participant's Individual Account as of such date bears
to the balance of all Individual Accounts of
Participants in the Plan on such date. Provided,
however, in the event any Participant is entitled to a
distribution of his Individual Account under Article V,
the Adjustments shall be allocated as of the last day
of the month immediately preceding the month in which
the Participant's termination of service occurs.
3.5 ALLOCATION OF FORFEITURES. The amount, if any, of a Participant's
Excess Matching Contributions and Employer Supplemental Contributions Accounts
forfeited under Section 5.1 shall be allocated to the Excess Matching
Contributions Accounts or the Employer Supplemental Contributions Accounts, as
the case may be, of all other Participants eligible to receive Excess Matching
Contributions under Section 3.2 and Employer Supplemental Contributions under
Section 3.3 for the Plan Year in which the forfeiture occurs. Such allocation
shall be allocated in the proportion that the Participant's Compensation for the
Plan Year bears to the total Compensation of all Participants for such Plan
Year. If, however, there are no Participants under the Plan who are eligible to
receive an allocation of forfeitures for the Plan Year in which a forfeiture
occurs, then, once the Company has satisfied all obligations to Participants
under the Plan, such forfeiture shall revert to the Company.
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ARTICLE IV
FUNDING OF BENEFITS
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4.1 UNSECURED 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 or any
trust created in connection with the 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.
4.2 TRUST. Notwithstanding the provisions of Section 4.1, the Committee
may, in its discretion, satisfy all or any part of the Company's obligations
under the Plan from a trust established by the Company in connection with the
Plan or from an insurance contract, annuity or similar vehicle owned by the
Company or by setting aside and investing amounts deferred under the Plan as an
asset of the Company. Any such trust or other vehicle shall constitute solely a
means to assist the Company in meeting its promised obligations under the Plan
and shall not constitute a funded account within the meaning of ERISA or the
Code, nor shall it create a security interest for the benefit of any Participant
or beneficiary. Any trust created hereunder shall conform in all respects to the
terms of the Model Trust, as described in Revenue Procedure 92-64.
ARTICLE V
DISTRIBUTIONS
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5.1 FORFEITURES ON TERMINATION OF SERVICE. A Participant's Excess Salary
Redirection Contributions Account shall not be subject to forfeiture or
reversion to the Company hereunder. Provided, however, to the extent specified
by the Board at the time an Employee becomes a Participant, the Participant's
Excess Matching Contributions Account and Employer Supplemental Contributions
Account under the Plan shall be subject to forfeiture upon the Participant's
termination of employment, prior to his completion of such number of Years of
Service as shall be determined by the Board at the time he became a Participant,
under circumstances other than any one of the following: (i) the death of the
Participant while still employed; (ii) the Committee's determination that the
Participant is Totally and Permanently Disabled; or (iii) a Participant's
retirement on or after attaining age sixty-five (65).
Notwithstanding the foregoing provisions of this Section 5.1, the
Participant shall not have any preferred claim on, or any beneficial ownership
interest in, any assets of the Company or any trust created in connection with
the Plan and any such assets shall be and remain subject to the claims of the
Company's creditors until the time such assets are actually paid to the
Participant as provided in Article V.
5.2 YEAR OF SERVICE. For purposes of this Article V, a Year of Service
means each Plan Year (commencing on and after the Effective Date) during which
the Employee has completed one thousand (1,000) Hours of Service for the
Company, as defined in Section 1.23 of the Thrift Plan.
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5.3 TIME OF PAYMENT OF BENEFITS. All nonforfeitable amounts credited to
a Participant's Individual Account, including any Adjustments credited in
accordance with Section 3.5, shall be distributed to a Participant (or his
designated beneficiary) within thirty (30) days after the earliest of a
Participant's termination of service following death, Total and Permanent
Disability, retirement on or after attaining age sixty-five (65) or other
separation from service with the Company.
5.4 METHOD OF PAYMENT. The sole form of distribution of the
Participant's benefits under the Plan shall be a single lump sum.
5.5 DEATH OF THE PARTICIPANT AND BENEFICIARY DESIGNATION. If a
Participant dies before distribution of his benefits under the Plan commences,
the Participant's entire benefit under the Plan shall be distributed to the
Participant's designated beneficiary, in a single lump sum, as soon as
reasonably practicable after the Participant's death.
The Participant may designate a primary and contingent beneficiary or
beneficiaries on forms provided by the Committee, which for this purpose may
include the Participation Agreement. Such designation may be changed at any time
for any reason by the Participant. If the Participant fails to designate a
beneficiary, or if such designation shall for any reason be illegal or
ineffective, or if the designated beneficiary shall not survive 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) per stirpes; (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 wills 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.
ARTICLE VI
PLAN ADMINISTRATION
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6.1 Company.
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(a) The Company, in establishing and maintaining the Plan,
of necessity retains control of the operation and
administration of the Plan. The Company, in accordance
with specific provisions of the Plan, has, as herein
indicated, delegated certain of these rights and
obligations to the Committee which, in turn, shall be
solely responsible for those, and only those, delegated
rights and obligations.
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(b) The Company shall supply such full and timely
information for all matters relating to the Plan as (i)
the Committee, (ii) the trustee of any trust
established in connection with the Plan, or (iii) the
attorneys, accountants and investment manager(s)
engaged on behalf of the Plan by the Company may
require for the effective discharge of their respective
duties.
6.2 Benefits Committee.
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(a) The Company shall appoint a committee of not less than
three (3) persons, who are members of the Board but who
are not Employees, to hold office at the pleasure of
the Company, such committee to be known as the Benefits
Committee ("Committee"). No Compensation shall be paid
to members of the Committee from the trust for service
on such Committee. The Committee shall choose from
among its members a chairman and a secretary. Any
action of the Committee shall be determined by the vote
of a majority of its members. Either the chairman or
the secretary may execute any certificate or written
direction on behalf of the Committee. If the Company
shall fail to appoint the Committee, then the Company
shall constitute the plan administrator of the Plan and
all references to the Committee under the Plan shall be
deemed for all purposes to refer to the Company.
(b) The Committee shall hold meetings upon such notice, at
such place or places and at such time or times as the
Committee may from time to time determine. A majority
of the members of the Committee at the time in office
shall constitute a quorum for the transaction of
business.
(c) The Committee may employ such counsel, accountants, and
other agents as it shall deem advisable. The Company
shall pay, or cause to be paid, the reasonable
compensation of such counsel, accountants, and other
agents and any other reasonable expenses incurred by
the Committee in the administration of the Plan and
trust.
(d) All members of the Committee shall serve until their
resignation or dismissal by the Board and vacancies
shall be filled in the same manner as the original
appointments. The Board may dismiss any member of the
Committee with or without cause.
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6.3 Claims Procedure.
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(a) The Committee shall receive all applications for
benefits. Upon receipt by the Committee of such an
application, it shall determine all facts which are
necessary to establish the right of an application to
benefits under the provisions of the Plan and the
amount thereof as herein provided. Upon request, the
Committee shall afford the applicant the right of a
hearing with respect to any finding of fact or
determination. The applicant shall be notified in
writing of any adverse decision with respect to his
claim within sixty (60) days after its submission. The
notice shall be written in a manner calculated to be
understood by the applicant and shall include:
(i) The specific reason or reasons for the denial;
(ii) Specific references to the pertinent Plan
provisions on which the denial is based;
(iii) A description of any additional material or
information necessary for the applicant to
perfect the claim and an explanation why such
material or information is necessary; and
(iv) An explanation of the Plan's claim review
procedures.
(b) If special circumstances require an extension of time
for processing the initial claim, a written notice of
the extension and the reason therefor shall be
furnished to the claimant before the end of the initial
sixty (60) day period. In no event shall such extension
exceed sixty (60) days.
(c) In the event a claim for benefits is denied or if the
applicant has had no response to such claim within
sixty (60) days of its submission (in which case the
claim for benefits shall be deemed to have been
denied), the applicant or his duly authorized
representative, at the applicant's sole expense, may
appeal the denial to the Committee within sixty (60)
days of the receipt of written notice of denial or
sixty (60) days from the date such claim is deemed to
be denied. In pursuing such appeal the applicant or his
duly authorized representative:
(i) May request in writing that the Committee
review the denial;
(ii) May review pertinent documents; and
(iii) May submit issues and comments in writing.
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(d) The decision on review shall be made within sixty (60)
days of receipt of the request for review, unless
special circumstances require an extension of time for
processing, in which case a decision shall be rendered
as soon as possible, but not later than one hundred
twenty (120) days after receipt of request for review.
If such an extension of time is required, written
notice of the extension shall be furnished to the
claimant before the end of the original sixty (60) day
period. The decision on review shall be made in
writing, shall be written in a manner calculated to be
understood by the claimant, and shall include specific
references to the provisions of the Plan on which such
denial is based. If the decision on review is not
furnished within the time specified above, the claims
shall be deemed denied on review.
6.4 RECORDS. All acts and determinations of the Committee shall be duly
recorded by the secretary thereof and all such records together with such other
documents as may be necessary in exercising its duties under the Plan shall be
reserved in the custody of such secretary. Such records and documents shall at
all times be open for inspection and for the purpose of making copies by any
person designated by the Company.
6.5 NO LIABILITY. The Company assumes no obligation or responsibility
to any of its Employees, Participants or beneficiaries for any act of, or
failure to act, on the part of the Committee (unless the Company is the
Committee).
6.6 INDEMNITY OF COMMITTEE MEMBERS. The Company shall indemnify and save
harmless the members of the Committee, and each of them, from and against any
and all loss resulting from liability to which the Committee, or the members of
the Committee, may be subjected by reason of any act or conduct (except willful
misconduct or gross negligence) in their official capacities in the
administration of the Plan, including all expenses reasonably incurred in their
defense, in case the Company fails to provide such defense. The Committee
members and the Company may execute a letter agreement further delineating the
indemnification agreement of this Section 6.6.
6.7 DISCRETIONARY POWERS AND AUTHORITY OF THE COMPANY AND COMMITTEE. The
Company and the Committee shall have any and all power and authority (including
discretion with respect to the exercise of that power and authority) which shall
be necessary, properly advisable, desirable or convenient to enable them to
carry out their responsibilities under the Plan. By way of illustration and not
limitation, the Company and Committee are empowered and authorized to (a) make
rules and regulations with respect to the Plan which are not inconsistent with
the provisions of the Plan or the Code; (b) determine, consistently therewith,
all questions that may arise concerning eligibility, benefits, status and rights
of any person claiming particular status under the Plan, including without
limitation Participants, beneficiaries and the spouses and beneficiaries
thereof; and (c) subject to and consistent with the Code, to construe and
interpret the Plan and correct any defect, supply any omissions or reconcile any
inconsistencies in the Plan. Subject to the provisions of Section 6.3, such
action shall be final, conclusive and binding upon all persons, whether or not
claiming benefits under the Plan.
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ARTICLE VII
AMENDMENT AND TERMINATION OF THE PLAN
-------------------------------------
7.1 AMENDMENT 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.
7.2 TERMINATION OF THE PLAN. The Company reserves the right at any
time by action of its Board to terminate the Plan by resolution of the Board or
to reduce or cease contributions at any time.
ARTICLE VIII
MISCELLANEOUS
-------------
8.1 GOVERNING 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.
8.2 HEADINGS 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.
8.3 ADMINISTRATION EXPENSES. The expenses of administering the Plan
shall be paid by the Company.
8.4 PARTICIPANT'S RIGHTS; ACQUITTANCE. No Participant in the Plan
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 and to any assets of the Company other
than as specifically provided herein. Unless a trust is established in
connection with the Plan, the Company shall be liable for the payment of any
benefit provided for herein.
8.5 SPENDTHRIFT 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.
8.6 COUNTERPARTS. The 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.
8.7 NO ENLARGEMENT OF EMPLOYMENT RIGHTS. Nothing contained in the Plan
shall be construed as a contract of employment between the Company and any
person, nor shall the Plan be deemed to give any person the right to be retained
in the employ of the Company or limit the right of the Company to employ or
discharge any person with or without cause, or to discipline any Employee.
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8.8 LIMITATIONS ON LIABILITY. Notwithstanding any of the preceding
provisions of the Plan, neither the Company, the Committee nor any individual
acting as an employee or agent of either of them shall be liable to any
Participant, Employee 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.
8.9 INCAPACITY OF PARTICIPANT OR BENEFICIARY. If any person entitled to
receive a payment 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.
8.10 CORPORATE 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,
but the Plan shall be continued after such sale, merger or consolidation only if
and to the extent that the transferee, purchaser or successor entity agrees to
continue the Plan. In the event that the Plan is not continued by the
transferee, purchaser or successor entity, then the Plan shall terminate in
accordance with the provisions of Section 7.2.
SIGNATURES
IN WITNESS WHEREOF, the Company has caused this Supplemental Executive
Retirement Plan to be executed by its duly authorized officers, this 31st day of
December, 1992, but effective as of January 1, 1993.
HORIZON BANCORP
By: Robert C. Dabagia
-------------------------
Title: President
----------------------
ATTEST: [SEAL]
By: Larry E. Reed
-----------------
Title: Chairman
-----------------
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