Exhibit 10.11
FIRST INDIANA CORPORATION
2002 STOCK INCENTIVE PLAN
Restricted Stock Agreement
RS NO. ___
The Compensation Committee of First Indiana Corporation and its
Subsidiaries (collectively, the "Employers") hereby awards Restricted Shares of
the Corporation's Common Stock to Xxxxxx X. Xxxxxxxxxx (the "Grantee") upon the
following terms and conditions:
1. Reference to Plan. The Restricted Shares awarded by this Agreement are
granted pursuant to the First Indiana Corporation 2002 Stock Incentive Plan (the
"Plan"). A copy of the Plan, as in effect on the Date of Grant, is attached
hereto and incorporated herein by reference. No amendment of the Plan adopted
after the Date of Grant shall apply to the Restricted Shares unless, by its
express provisions, it is effective retroactive to the Date of Grant or some
earlier date. No such retroactive amendment may, without the consent of the
Grantee, adversely affect the rights of the Grantee under this Agreement.
2. Reference to the 2004 ECP and the 2003-05 Incentive Program. The
Restricted Shares awarded by this Agreement also are granted pursuant to the
incentive compensation program that has been established under the First Indiana
Corporation 2004 Executive Compensation Plan (the "2004 ECP") for performance
periods ending December 31, 2005. References herein to the 2003-05 Incentive
Program refer to the program so established. Copies of the 2004 ECP and the
2003-05 Incentive Program, both as in effect on the Date of Grant, are attached
hereto and incorporated herein by reference.
2. Definitions. For purposes of this Agreement and any amendments hereto,
the terms defined in Article IV of the Plan or Section 3 of the 2004 ECP, when
capitalized, shall have the same meanings as the meanings ascribed to them for
purposes of the Plan or the 2004 ECP, unless a different meaning is set forth
herein, or unless a different meaning is plainly required by the context. For
purposes of this Agreement and any amendments hereto, the following terms, when
capitalized, shall have the following meanings, unless a different meaning is
plainly required by the context:
"Bank" means First Indiana Bank, N.A., a wholly-owned Subsidiary of the
Corporation.
"Common Stock" means shares of the common stock, par value $.01 per share,
of the Corporation.
"Date of Grant" means ___________, the date as of which the Restricted
Shares awarded by this Agreement are being awarded.
"Disability" means, with reference to any termination of the Grantee's
Continuous Service as an employee of the Employers, any physical or mental
impairment of the Grantee that qualifies the Grantee for disability benefits
under the terms of the long term disability plan of the Grantee's Employer in
effect
at the time of such termination and that is expected to last at least 12 months
from the date of such termination or to result in death within such period of 12
months.
"Qualifying Circumstance" means, with reference to an interruption or
termination of the Grantee's Continuous Status as an employee of the Employers,
an interruption or termination (i) that occurs due to the Grantee's death or
Disability, (ii) that occurs after the Grantee has attained age 62 and completed
25 years of service, or (iii) that the Compensation Committee determines (A) to
be due to a reduction in force, reallocation of responsibilities or similar
initiative of the Corporation or the Bank and (B) to be unrelated to any
dissatisfaction, merited or unmerited, with the Grantee's job performance.
"Performance Goals" refer to the Performance Goals that are established in
accordance with the 2004 ECP for the 2003-05 Incentive Program and that normally
must be attained in order for awards under the 2003-05 Incentive Program to
become vested.
"Restricted Period" means the period commencing on the Date of Grant, and
ending on December 31, 2006, or on such earlier date as the Compensation
Committee may determine pursuant to Section 4.
"Restricted Shares" mean the shares of Common Stock awarded by this
Agreement, including any shares of Common Stock or other securities distributed
in respect thereof, or in substitution therefor, by reason of an adjustment
provided for in Section 10 below.
3. Share Award. The Employers hereby award to the Grantee, subject to the
terms and conditions of the Plan and the 2003-05 Incentive Program, and subject
to the terms and conditions set forth in this Agreement, __________ shares of
Common Stock.
4. Restrictions on Transfer. The Restricted Shares will vest at the
expiration of the Restricted Period, subject to the provisions of Sections 5, 6
and 9. Unless and until such time as the restrictions specified in this
Agreement no longer apply, the Grantee may not sell, assign, transfer, pledge or
otherwise encumber the Restricted Shares, except as hereinafter provided. The
Compensation Committee shall have the authority, in its discretion, to waive the
provisions of Sections 5 and 6 and to shorten the Restricted Period as to any or
all of the Restricted Shares and thereby to cause such Restricted Shares to vest
at an earlier date, whenever the Compensation Committee may determine that such
action is appropriate by reason of changes in applicable tax or other laws or by
reason of other changes and circumstances occurring after the Date of Grant.
5. Forfeiture Upon Termination of Continuous Status. If the Grantee's
Continuous Status with the Employers terminates during the Restricted Period
otherwise than by reason of a Qualifying Circumstance, the Restricted Shares
shall be forfeited and cancelled. If the Grantee's Continuous Status terminates
during the Restricted Period by reason of a Qualifying Circumstance, the
Compensation Committee, within 90 days after such termination, may declare the
Grantee to be vested as to a fraction of the Restricted Shares, the numerator of
which is the number of full calendar months in the Performance Period prior to
such termination in which the Grantee maintained Continuous Status, and the
denominator of which is 26, provided the Performance Goals ultimately are
attained. The remainder of the Restricted Shares, or all of the Restricted
Shares if the Performance Goals ultimately are not attained or the Compensation
Committee fails or refuses within such 90 day period to declare the Grantee
vested as to
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such fraction of the Restricted Shares, shall be forfeited and cancelled,
notwithstanding the fact that such termination was by reason of a Qualifying
Circumstance. If the Grantee, in connection with a Change in Control, ceases to
be director, officer, employee or Consultant of the Employers and becomes a
director, officer, employee or Consultant of the successor to an Employer or an
affiliate of such successor, the Grantee's Continuous Status shall not be deemed
to have terminated unless and until the Grantee ceases to be a director,
officer, employee or Consultant of such successor or affiliate and its
successors. For purposes of this section, the Grantee's Continuous Status shall
be deemed to terminate before the end of the Restricted Period, even if it does
not actually so terminate, if, before the end of the Restricted Period, and
before the occurrence of a Change of Control, (i) the Grantee gives notice to
the Grantee's Employer or Employers of the termination of the Grantee's
association with the Employers in all capacities as a director, officer,
employee or Consultant effective as of a date before or within 60 days after the
end of the Restricted Period, (ii) the Grantee takes any action, such as
accepting another position, that indicates the Grantee definitely plans to
terminate the Grantee's association with the Employers before or within 60 days
after the end of the Restricted Period, or (iii) the Grantee's Employer or
Employers give notice to the Grantee that the Grantee's association with the
Employers in all capacities as a director, officer, employee or Consultant is
being terminated as of a date prior to or within 30 days after the end of the
Restricted Period. The provisions of this section are subject to any contrary
provisions of Section 11 below regarding the vesting of part or all of the
Restricted Shares in certain events involving a Change of Control.
6. Forfeiture Upon Failure to Meet Performance Goals. If the Compensation
Committee, by formal action taken prior to the date six months after the
expiration of the Restricted Period, determines that the Performance Goals under
the 2003-05 Incentive Program cannot be or were not attained, the Restricted
Shares thereupon shall be forfeited and returned to the Corporation.
7. Certificates for Restricted Shares. The Corporation shall issue one or
more certificates in respect of the Restricted Shares in the name of the Grantee
and shall hold such certificate or certificates on deposit for the account of
the Grantee until the expiration of the Restricted Period and thereafter for a
period of up to six months pending formal action by the Compensation Committee
in accordance with Section 9 below. Each such certificate shall bear the
following legend:
The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) contained in the First Indiana Corporation 2002 Stock
Incentive Plan ("Plan"), the First Indiana Corporation 2004 Executive
Compensation Plan ("2004 ECP"), the 2003-05 Incentive Program (the "2004
Incentive Program") and an Agreement entered into between the registered
owner and First Indiana Corporation. Copies of the Plan, the 2004 ECP, the
2003-05 Incentive Program and the Agreement are on file in the office of
the Secretary of First Indiana Corporation, 000 Xxxxx Xxxxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000.
Upon execution of this Agreement, the Grantee shall execute a stock power
endorsed in blank and promptly deliver such stock power to the Corporation.
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8. Grantee's Rights as Stockholder; Voting; Dividends. Except as otherwise
provided herein, the Grantee, as owner of the Restricted Shares, shall have all
the rights of a stockholder, including, but not limited to, the right to receive
all cash dividends paid on the Restricted Shares and the right to vote the
Restricted Shares. However, cash dividends the record date for which is after
December 31, 2006, or after the termination of the Grantee's Continuous Status
with the Employers, shall be subject to the same restrictions applicable to the
Restricted Shares and shall be payable in respect of the Restricted Shares only
to the extent the Restricted Shares become vested.
9. Certification of Committee and Delivery of Shares. Except as otherwise
provided in Section 11, the Restricted Shares shall not become vested unless the
Compensation Committee, by formal action taken on or prior to a date six months
after the close of the Restricted Period, determines and certifies pursuant to
Section 6.3 of the 2004 ECP that the Performance Goals established for the
2003-05 Incentive Program have been attained. If and when the Compensation
Committee makes such certification, the Corporation shall exchange the
previously issued certificates in respect of such shares for a new certificate
in respect of such shares that does not bear the legend provided for in Section
7 above. The Corporation shall deliver such new certificate to the Grantee and
shall relinquish to the Grantee the stock power in respect of such shares held
by the Corporation pursuant to Section 7.
10. Adjustments for Changes in Capitalization of the Corporation. In the
event of any change in the outstanding shares of Common Stock subsequent to the
Date of Grant by reason of any reorganization, recapitalization, stock split,
stock dividend, combination or exchange of shares, merger, consolidation, or any
change in the corporate structure of the Corporation or in the shares of Common
Stock, the number and class of Restricted Shares covered by this Agreement shall
be appropriately adjusted by the Compensation Committee, whose determination
shall be conclusive. Any shares of Common Stock or other securities distributed
in respect of the Restricted Shares as a result of any of the foregoing shall be
held by the Corporation on deposit for the account of the Grantee until the
expiration of the Restricted Period and shall be subject to the forfeiture and
other provisions of this Agreement to the same extent and in the same manner as
the previously issued Restricted Shares in respect of which they were
distributed.
11. Effect of Change of Control.
(a) If a Change of Control occurs more than four months before the end of
the Restricted Period, the Grantee may elect to become vested in respect of a
fraction of the Restricted Shares, the numerator of which is the number of full
calendar months in the Performance Period prior to the effective date of such
Change of Control in which the Grantee maintained Continuous Status with the
Employers, and the denominator of which is 26, in lieu of continuing the
Grantee's participation in the 2003-05 Incentive Program for the remainder of
the Restricted Period. Such an election must be made in writing to the
Compensation Committee before or within 30 days after the occurrence of such
Change of Control and no later than four months before the end of the Restricted
Period. If such election is made, distribution of unrestricted shares under
Section 9 shall be made before or within 15 days after the later of the
occurrence of such Change of Control or the delivery of such writing. If such an
election is made, the Grantee shall forfeit the remainder of the Restricted
Shares, regardless of whether the Performance Goals ultimately are attained,
unless subsection 11(b) applies. If the Grantee terminates employment within 30
days after the occurrence of a Change of Control that occurs more than four
months before the end of the
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Restricted Period, the Grantee shall be deemed to have made and perfected an
election under this subsection at the time of such termination of employment.
(b) If a Change of Control occurs after the beginning but before the end
of the Restricted Period, then the Grantee shall become vested in respect of all
of the Restricted Shares, regardless of whether the Performance Goals ultimately
are attained, in each of the following events:
(i) Upon or in connection with such Change of Control, a successor
acquires substantially all of the assets and business of the Corporation or the
Bank (A) without assuming (directly or through an affiliate) the Plan, the 2004
ECP, the 2003-05 Incentive Program and this Agreement in respect of the Grantee
or (B) if a written employment agreement between the Grantee and the Corporation
or a Subsidiary is in effect or becomes effective at the time of such Change of
Control, without either (I) assuming or agreeing to honor such agreement for the
balance of the term thereof or (II) entering into a new written employment
agreement with the Grantee which amends or supersedes such agreement.
(ii) Upon or after such Change of Control, and prior to the end of the
Restricted Period, the Corporation, any Subsidiary or a successor to the
Corporation or any Subsidiary terminates the Grantee's employment without Cause
prior to the end of the term provided for in any written employment agreement
between the Grantee and the Corporation or such Subsidiary or successor that is
in effect or becomes effective upon such Change of Control or in any new written
agreement between the Grantee and the Corporation or such Subsidiary or
successor which amends or supercedes any such agreement.
12. Delivery and Registration of Shares of Common Stock. The Corporation's
obligation to deliver shares of Common Stock hereunder shall, if the
Compensation Committee so requests, be conditioned upon the receipt of a
representation as to the investment intention of the Grantee or any other person
to whom such shares are to be delivered, in such form as the Compensation
Committee shall determine to be necessary or advisable to comply with the
provisions of the Securities Act of 1933, as amended, or any other federal,
State or local securities legislation. In requesting any such representation, it
may be provided that such representation requirement shall become inoperative
upon a registration of such shares or other action eliminating the necessity of
such representation under such Securities Act or other securities legislation.
The Corporation shall not be required to deliver any shares under this Agreement
prior to (i) the admission of such shares to listing on any stock exchange on
which the shares of Common Stock may then be listed, and (ii) the completion of
such registration or other qualification of such shares under any state or
federal law, rule or regulation, as the Compensation Committee shall determine
to be necessary or advisable.
13. Withholding Tax. Upon vesting of the Restricted Shares (or at such
earlier time as an election is made by the Grantee under Section 83(b) of the
Internal Revenue Code of 1986, as amended, or any successor provision thereto,
to include the value of the Restricted Shares in taxable income), the Grantee's
Employer shall have the right to require the Grantee or other person receiving
the Restricted Shares to pay such Employer the amount of any taxes which it is
required to withhold with respect to the Restricted Shares or, in lieu thereof,
to retain, or sell without notice, a sufficient number of the Restricted Shares
to cover the amount required to be withheld. The Corporation shall have the
right to deduct from all dividends paid on the Restricted Shares the amount of
any taxes which the Employers are required to withhold with respect to such
dividend payments.
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14. Notices. Any notices provided for in this option or the Plan shall be
given in writing. Notices to the Employers shall be delivered to the President
of the Corporation, or shall be left for or mailed to such President at the main
office of the Corporation, and shall be deemed effectively given when so
delivered or left or, if mailed, when received at such main office. Notices to
the Grantee shall be mailed and shall be deemed effectively given five days
after deposit in the United States mail, postage prepaid, addressed to the
Grantee at the last address provided by the Grantee to the Corporation.
15. Plan and Plan Interpretations as Controlling. The Restricted Shares
and the terms and conditions herein set forth are subject in all respects to the
terms and conditions of the Plan, the 2004 ECP and the 2003-05 Incentive
Program, which are controlling. All determinations and interpretations of the
Compensation Committee shall be binding and conclusive upon the Grantee or his
legal representatives with regard to any question arising hereunder or under the
Plan, the 2004 ECP or the 2003-05 Incentive Program.
16. Award Not a Service Contract. This Award is not an employment or
service contract, and nothing in this Agreement shall be deemed to create in any
way whatsoever any obligation on the Grantee's part to continue in the service
of the Corporation or any Subsidiary, or on the part of the Corporation or any
Subsidiary to continue the Grantee in its service.
17. Grantee Acceptance. The Grantee shall signify his acceptance of the
terms and conditions of this Agreement by signing on the space provided below
and returning a signed copy hereof to the Corporation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of _________________.
FIRST INDIANA CORPORATION
By: __________________________
Xxxxx XxXxxxxx, CEO
"Corporation"
FIRST INDIANA BANK
By: __________________________
Xxxxx XxXxxxxx, Chairman
"Bank"
ACCEPTED:
______________________________
Xxxxxx X. Xxxxxxxxxx
______________________________
(Street Address)
______________________________
(City, State & Zip Code)
"Grantee"
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IRREVOCABLE STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign and transfer
to First Indiana Corporation, ________ shares of the common stock of First
Indiana Corporation represented by Certificate Nos. _____________ (including
additional shares of such common stock distributed as dividends in respect of
such shares or any such additional shares) now or hereafter standing in the name
of the undersigned on the books of said Corporation.
The undersigned hereby irrevocably constitutes and appoints National City
Bank to transfer the said shares on the books of said Corporation, with full
power of substitution in the premises.
Dated:
____________________
Xxxxxx X. Xxxxxxxxxx
