Exhibit 10(e)
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THE NATIONAL BANK OF INDIANAPOLIS CORPORATION
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RESTRICTED STOCK AGREEMENT
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THIS AGREEMENT, made and executed as of the ____ day of _________
between The National Bank of Indianapolis Corporation, an Indiana corporation
("Company"), and _________________, an officer or employee of the Company or one
of its Subsidiaries ("Participant");
WITNESSETH:
WHEREAS, the Board of Directors and shareholders of the Company have
adopted the "1993 Restricted Stock Plan of The National Bank of Indianapolis
Corporation" ("Plan"), to promote the interests of the Company, its shareholders
and the Subsidiaries of the Company by encouraging their officers and other key
employees, upon whose judgment, initiative and industry the Company and its
Subsidiaries are largely dependent for the successful conduct and growth of
their businesses, to continue their association with the Company by providing
additional incentive and opportunity for unusual industry and efficiency through
stock ownership; and
WHEREAS, it is the view of the Company that this goal may be achieved
by awarding shares of stock to eligible officers and other key employees from
time to time; and
WHEREAS, the Participant has been designated by the Committee as an
individual to whom shares of stock should be awarded under the Plan as
determined from the duties performed, the initiative and industry of the
Participant, the extraordinary nature of her service, and her potential
contribution to the future development, growth and prosperity of the Company;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Company and the Participant agree as follows:
1. Award of Stock. The Company awards to the Participant an aggregate
of _____________ shares of common stock of the Company ("Restricted Stock"),
subject to the terms and conditions of this Agreement and the provisions of the
Plan. All such provisions of the Plan, including the terms defined therein, are
incorporated herein and are expressly made a part of this Agreement by
reference. The Participant hereby acknowledges that she has received a copy of
the Plan.
2. Issuance of Shares. The Participant shall have none of the rights of
a shareholder with respect to the shares of Restricted Stock until such shares
are issued to her. The Company shall not be required to issue or deliver any
certificate(s) or shares of its stock awarded hereunder prior to the (i)
completion of any registration or other qualification of such shares which the
Company shall deem necessary or advisable under any federal or state law or
under the rulings or regulations of the Securities and Exchange Commission or
any other governmental regulatory body, and (ii) obtaining of any approval or
other clearance from any federal or state governmental agency or body which the
Company shall determine to be necessary or advisable. The Company shall have no
obligation to obtain the fulfillment of the conditions specified in the
preceding sentence.
3. Restrictions Transferability and Forfeiture of Restricted Stock.
(a) Restrictions on Transferability. No shares of Restricted Stock
awarded under the Plan shall be assignable or transferable by the Participant
except by will or by the laws of descent and distribution. The shares of
Restricted Stock shall not be pledged or hypothecated in any way, nor shall they
be subject to execution, attachment or similar process. Any attempt of
assignment, transfer, pledge or other disposition of any shares of Restricted
Stock in violation of this provision or the levy of execution, attachment or
similar process upon any shares of Restricted Stock shall be null and void and
without effect and shall cause the Restricted Stock to be forfeited.
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(b) Vesting.
(i) None of the shares of Restricted Stock shall vest until
____________. On _______________, the Participant shall become vested
in one hundred percent (100%) of the shares of Restricted Stock.
(ii) Notwithstanding the preceding provisions of this paragraph 3, upon
the earlier to occur of (A) the Participant's death or (B) the
Participant's permanent and total disability, as defined in Section
22(e)(3) of the Internal Revenue Code of 1986, as amended, the
restrictions on transferability shall thereupon immediately lapse and
all shares of Restricted Stock subject to forfeiture under subparagraph
(b) shall thereupon be fully vested and nonforfeitable; provided,
however, in the event that the Participant's employment with the
Company or any Subsidiary is terminated for any reason other than death
or disability prior to the time any of the shares of Restricted Stock
become vested in accordance with the provisions of (i) above, all of
the unvested shares of Restricted Stock shall be forfeited, as provided
in (iii) below, and shall thereupon revert to the Company. Transfer
from the Company to a Subsidiary or vice versa or from one Subsidiary
to another shall not be deemed termination of employment.
(iii) If the Participant's termination of employment is for any reason
other than "for cause" or on account of her permanent and total
disability or death, all of the unvested shares of Restricted Stock
shall be forfeited effective on the date of the Participant's
termination of employment. If the Participant's employment is
terminated "for cause", all of the unvested shares of Restricted Stock
shall be forfeited effective on the date the Participant receives
notice of her termination for cause. As used in the Plan and this
Agreement, "for cause" shall be defined as (A) the willful and
continued failure of a Participant to perform her required duties as an
officer or employee of the Company or any Subsidiary, (B) action by a
Participant involving willful misfeasance or gross negligence, (C) the
requirement or direction of a federal or state regulatory agency having
jurisdiction over the Company or any Subsidiary to terminate the
employment of a Participant, (D) conviction of a Participant of the
commission of any criminal offense involving dishonesty or breach of
trust, or (E) any intentional breach by a Participant of a material
term, condition or covenant of any agreement of employment, termination
or severance or any other agreement between the Participant and the
Company or any Subsidiary.
(c) Change in Control of Company. Notwithstanding the provisions of
subparagraphs (a) and (b) (i) through (iii), in the event of a Change in Control
of the Company, (i) the restrictions on the transfer of all shares of Restricted
Stock provided in subparagraph (a) above shall thereupon immediately lapse and
(ii) all shares of Restricted Stock subject to forfeiture under subparagraph (b)
(i) through (iii) shall thereupon become fully vested and nonforfeitable.
4. Pass-Through of Dividends and Voting Rights. The Participant shall
be entitled to (i) receive all dividends payable and paid with respect to the
Restricted Stock and (ii) exercise all voting rights associated with such
Restricted Stock; provided, however, upon the transfer or other disposition of
any shares of Restricted Stock by the Participant in violation of paragraph 3(a)
or upon the forfeiture of any shares of Restricted Stock in accordance with
paragraph 3(b), the Participant shall not be entitled to receive any dividends
declared on or exercise any voting rights on or after the date the shares of
Restricted Stock were transferred or forfeited.
5. Restrictive Legends. The Participant hereby declares that it is her
intention to hold all shares acquired as a result of the award of Restricted
Stock for investment and not with a view to resale or distribution to the public
and agrees that, unless the Company elects to register such shares under
applicable federal and state securities laws, all certificates for such shares
shall bear a legend in substantially the following form:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, under the Indiana Securities
Regulation Law, or under any other state securities laws. The shares
may not be sold or transferred in the absence of registration or an
exemption therefrom under the Securities Act of 1933 and under
applicable state securities laws."
The Participant also agrees that such shares shall bear the following
legend to reflect the restrictions
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provided for in paragraph 3 relating to restrictions on transferability and
vesting:
"The shares represented by this certificate have been issued pursuant
to the terms and conditions contained in the 1993 Restricted Stock Plan
of The National Bank of Indianapolis Corporation ("Plan") and a
Restricted Stock Agreement between The National Bank of Indianapolis
Corporation and the individual in whose name the shares have been
issued ("Agreement"). The Plan and Agreement contain restrictions on
the transferability of the shares and provide for the forfeiture of the
shares unless certain requirements are met. The shares may not be sold,
assigned, pledged or transferred except in conformance with the terms
and conditions of the Plan and Agreement, copies of which are on file
with the Secretary of the Corporation."
6. Participant's Representations. The Participant represents to the
Company that (i) the terms and arrangements relating to the award of Restricted
Stock and the offer thereof have been arrived at or made through direct
communication with the Company or person acting in its behalf and the
Participant; (ii) she has received a balance sheet and income statement of the
Company and as a key employee of the Company or one of its Subsidiaries (A) is
thoroughly familiar with its business affairs and financial condition and (B)
has been provided with or has access to such information (and has such knowledge
and experience in financial and business matters that she is capable of
utilizing such information) as is necessary to evaluate the risks, and make an
informed investment decision with respect to, this right and the stock to which
it relates; (iii) she represents that the Restricted Stock is being acquired by
her in good faith for investment purposes and not with a view to, or for sale in
connection with, any distribution thereof, and that any shares acquired pursuant
to the award will be acquired in good faith for investment purposes and not with
a view to, or for sale in connection with, any distribution thereof.
7. Indemnity. The Participant hereby agrees to indemnify and hold
harmless the Company and Committee against any and all losses, claims, damages,
liabilities and expenses based upon or arising out of the incorrectness or
alleged incorrectness of any representation made by him to the Company herein or
any failure on the part of her to perform any agreements contained herein.
8. Financial Information.
(a) Delivery of Financial Statements. The Company hereby undertakes to
deliver to the Participant, at such time as they become available and so long as
this Agreement is in effect, a balance sheet and income statement of the Company
with respect to any fiscal year of the Company ending on or after the date
hereof.
(b) Collection of Withholding Taxes. The Company and its Subsidiaries
shall also have the right to require payment to them from any person entitled to
have shares of Restricted Stock of the Company vest in her pursuant to the Plan
of the amount of tax or other charge required by law, or required to be withheld
as a result of the vesting of shares of the Restricted Stock.
9. Conditions Precedent. In no event shall the Company be obligated to
issue stock pursuant to this award until it is satisfied that all conditions
precedent to the issue of such stock, as provided in the Plan, have been
performed.
10. Changes in Stock. Subject to the provisions of Paragraph 3(c), in
the event of any change in the common stock of the Company, as described in
paragraph 9 of the Plan, the Committee shall make appropriate adjustment or
substitution in the number, kind, and price of shares under this award, all as
provided in the Plan. The Committee's determination in this respect shall be
final and conclusive upon all parties.
11. Competition After Termination of Employment. Participant
acknowledges and agrees that in the performance of her duties of employment with
the Company she may be in contact with customers, potential customers and/or
information about customers or potential customers of the Company either in
person, through the mails, by telephone or by other electronic means.
Participant also acknowledges and agrees that trade secrets and confidential
information of the Company, more fully described in Section 11 of this
Agreement, gained by Participant during her employment with the Company, have
been developed by the Company through substantial
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expenditures of time, effort and financial resources and constitute valuable and
unique property of the Company. Participant further understands, acknowledges
and agrees that the foregoing makes it necessary for the protection of the
Company's business that Participant not divert business or customers from the
Company and that Participant maintain the confidentiality and integrity of the
Confidential Information as hereinafter defined.
Participant agrees that she will not, during her employment by the Company and
for a period of eighteen months after such employment ends, whether by action of
Participant or the Company (the "Business Protection Period"), solicit, divert,
entice or take away any customers, business, patronage or orders of the Company
with whom Participant has had primary contact, involvement or responsibility
during her employment with the Company, or attempt to do so, for the sale of any
product or service that competes with a product or service offered by the
Company. Nothing contained in this Section 11(a) shall preclude Participant from
accepting employment with a company, firm, or business that competes with the
Company so long as the Participant's activities do not violate the provisions of
Section 11(a) or any of the provision of Sections 11(b) and 11(c) below.
Participant agrees that she will not directly or indirectly at any time during
the Business Protection Period solicit or induce or attempt to solicit or induce
any employee of the Company to terminate his or her employment, representation
or other association with the Company.
Participant will keep in strict confidence, and will not, directly or
indirectly, at any time during or after the term of this Agreement, disclose,
furnish, disseminate, make available or use (except in the course of performing
her duties of employment with the Company) any trade secrets or confidential
business or technical information of the Company or its customers ( the
"Confidential Information"), without limitation as to when or how Participant
may have acquired such information. The Confidential Information shall include
the whole or any portion or phase of any scientific or technical information,
design, process, procedure, formula, pattern, compilation, program, device,
method, technique or improvement, or any business information or plans,
financial information, or listing of names, addresses or telephone numbers,
including without limitation, information relating to the Company's customers or
prospective customers, the Company's customer list, contract information
including terms, pricing and services provided, information received as a result
of customer contacts, the Company's products and processing capabilities,
methods of operation, business plans, financials or strategy, and agreements to
which the Company may be a party. The Confidential Information shall not include
information that is or becomes publicly available other than as a result of
disclosure by the Participant. Participant specifically acknowledges that the
Confidential Information, whether reduced to writing or maintained in the mind
or memory of Participant and whether compiled by the Company and/or Participant,
derives independent economic value from not being readily known to or
ascertainable by proper means by others who can obtain economic value from its
disclosure or use, that reasonable efforts have been put forth by the Company to
maintain the secrecy of such information, that such information is the sole
property of the Company and that any retention and use of such information
during or after the Participant's employment with the Company (except in the
course of performing her duties of employment with the Company) shall constitute
a misappropriation of the Company's trade secrets. Participant further agrees
that, at the time of termination of this employment she will return to the
Company, in good condition, all property of the Company, including, without
limitation, the Confidential Information. In the event that said items are not
so returned, the Company shall have the right to charge Participant for all
reasonable damages, costs, attorney's fees and other expenses incurred in
searching for, taking, removing, and/or recovering such property. In the event
that the Participant is advised in writing by her legal counsel that she is
required by subpoena or other legal process to disclose any of the Confidential
Information, she shall promptly notify the Company of this situation and she
shall promptly provide the Company with a written copy of the written advice of
legal counsel so that the Company may seek a protective order or other
appropriate remedy. If a protective order or other appropriate remedy is not
obtained in a reasonable period of time, the Participant may furnish only that
portion of the Confidential Information that she is advised by her legal counsel
is legally required.
12. Effect of Headings. The descriptive headings of the Paragraphs of
this Agreement are inserted for convenience and identification only and do not
constitute a part of this Agreement for purposes of interpretation.
13. Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by and construed in accordance
with the internal law of the State of Indiana applicable to contracts made and
to be performed entirely within such state.
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14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
collectively shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Participant have executed this
Restricted Stock Agreement as of the day and year first above written.
THE NATIONAL BANK OF INDIANAPOLIS
CORPORATION
By:_____________________________________
PARTICIPANT
________________________________________
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