<PAGE>
As filed with the Securities and Exchange Commission on September 9, 1998
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
FIRST MIDWEST BANCORP, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3161078
(State of Incorporation) (I.R.S. Employer Identification No.)
300 Park Boulevard, Suite 405, Itasca, Illinois 60143-0459 (630) 875-7450
(Address of principal executive offices, including zip code)
FIRST MIDWEST BANCORP, INC.
NONQUALIFIED RETIREMENT PLAN
(Full title of the plan)
Mr. Donald J. Swistowicz
Executive Vice President
First Midwest Bancorp, Inc.
300 Park Boulevard
Suite 405
Itasca, Illinois 60143-0459
(630) 875-7450
(Telephone number, including area code, of agent for service)
------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
Proposed Proposed
maximum maximum Amount of
Amount to be offering price aggregate registration
Title of securities to be registered registered per share offering price fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value/(1)/........ 150,000 shares/(2)/ $39.91/(3)/ $ 5,986,500/(3)/ $1,814.09
Deferred Compensation Obligations/(4)/... $10,000,000 100% $10,000,000/(5)/ $3,030.30
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Registrant is also registering preferred share purchase rights which
are evidenced by the certificates for the Common Stock registered in a
ratio of one Preferred Share Purchase Right for each share of Common Stock.
(2) Pursuant to Rule 416(a) of the Securities Act of 1933, this Registration
Statement also covers an indeterminate number of shares as may be issuable
to prevent dilution resulting from stock splits, stock dividends or similar
transactions.
(3) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h)(1) based upon the averages of the high and low prices for
the Common Stock reported on the NASDAQ National Market System on September
4, 1998.
(4) The deferred compensation obligations are unsecured obligations of First
Midwest Bancorp, Inc. to pay deferred compensation in the future in
accordance with the terms of the First Midwest Bancorp, Inc. Nonqualified
Retirement Plan.
(5) Estimated solely for the purposes of determining the registration fee.
<PAGE>
FIRST MIDWEST BANCORP, INC.
FORM S-8
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUSES
The documents containing the information required by this section will be given
to persons eligible to participate in the First Midwest Bancorp, Inc.
Nonqualified Retirement Plan and are not required to be filed with the
Commission as a part of this Registration Statement.
2
<PAGE>
FIRST MIDWEST BANCORP, INC.
FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Registrant (File No. 0-10967) pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated in this Registration Statement by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 and the Amendment on Form 10-K/A thereto;
(2) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998 and June 30, 1998;
(3) The Registrant's Current Reports on Form 8-K dated January 23, 1998,
April 28, 1998, May 28, 1998, June 22, 1998, July 1, 1998 and August
20, 1998; and
(4) The description of the Common Stock, $.01 par value, and Preferred
Stock purchases rights associated with the Common Stock of the
Registrant, no par value, as contained in the Registrant's
Registration Statement on Form 8-A, dated February 17, 1989, as
amended by subsequently filed reports on Form 8-A.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold are
incorporated by reference in this Registration Statement and are a part thereof
from the date of filing of such documents. Any statements contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein (or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein) modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
3
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Delaware law, a corporation may indemnify any person who was or
is a party or is threatened to be made a party to an action (other than an
action by or in the right of the corporation) by reason of his service as a
director or officer of the corporation, or his service, at the corporation's
request, as a director, officer, employee or agent of another corporation or
other enterprise, against expenses (including attorney's fees) that are actually
and reasonably incurred by him ("Expenses"), and judgements, fines and amounts
paid in settlement that are actually and reasonably incurred by him, in
connection with the defense or settlement of such action, provided that he acted
in good faith and in a matter he reasonably believed to be in or not opposed to
the corporations' best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was unlawful.
Although Delaware law permits a corporation to indemnify any person referred to
above against Expenses in connection with the defense or settlement of an action
by or in the right of the corporation, provided that he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the corporation's
best interests, if such person has been judged liable to the corporation,
indemnification is only permitted to the extent that the Court of Chancery (or
the court in which the action was brought) determines that, despite the
adjudication of liability, such person is entitled to indemnity for such
Expenses as the court deems proper. The determination as to whether a person
seeking indemnification has met the required standard of conduct is to be made
(1) by a majority vote of a quorum of disinterested members of the board of
directors, or (2) by independent legal counsel in a written opinion, if such a
quorum does not exist or if the disinterested directors so direct, or (3) by the
stockholders. The General Corporation Law of the State of Delaware also provides
for mandatory indemnification of any director, officer, employee or agent
against Expenses to the extent such person has been successful in any proceeding
covered by the statute. In addition, the General Corporation Law of the State of
Delaware provides the general authorization of advancement of a director's or
officer's litigation expenses in lieu of requiring the authorization of such
advancement by the board of directors in specific cases, and that
indemnification and advancement of expenses provided by the statute shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement or
otherwise.
The Registrant's Amended and Restated By-laws and Restated Certificate
of Incorporation provide for indemnification of the Registrant's directors,
officers, employees and other agents to the fullest extent not prohibited by
Delaware law.
The Registrant has entered into agreements to indemnify its directors
and executive officers, in addition to the indemnification provided for in the
Registrant Amended and Restated By-laws and Restated Certificate of
Incorporation. These agreements, among other things, will indemnify the
Registrant's directors and executive officers for all direct and indirect
expenses and costs (including, without limitation, all reasonable attorneys'
fees and related disbursements, other out of pocket costs and reasonable
compensation for time spent by such persons for which they are not otherwise
compensated by the Registrant or any third party) and liabilities of any type
whatsoever (including, but not limited to, judgements, fines and settlement
fees) actually and reasonably incurred by such person in connection with either
the investigation, defense, settlement or appeal of any threatened, pending or
completed action suit or other proceeding, including any action by or in the
right of the Registrant, arising out of such person's services as a director,
officer, employee or other agent of the Registrant, any subsidiary of the
Registrant or any other company or enterprise to which the person provides
services at the request of the Registrant. The Registrant believes that these
provisions and agreements are necessary to attract and retain talented and
experienced directors and officers.
The Registrant's Restated Certificate of Incorporation is consistent
with Section 102(b)(7) of the Delaware General Corporation Law, which generally
permits a corporation to include a provision limiting the personal liability of
a director in the corporation's certificate of incorporation. With limitations,
this provision eliminates the personal liability of the Registrant's directors
to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director. However, this provision does not eliminate
director liability: (1) for breaches of duty of loyalty to the Registrant and
its stockholders; (2) for acts of omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (3) for transactions from
which a director derives improper personal benefit; or (4) under Section 174 of
the Delaware General Corporation Law ("Section 174"). Section 174 makes
directors personally liable for unlawful dividends and stock repurchases or
redemptions and expressly sets forth a negligence standard with respect to such
liability.
4
<PAGE>
While this provision protects the directors from awards for monetary damages for
breaches of their duty of care, it does not eliminate their duty of care. The
limitations in this provision have no effect on claims arising under the
securities laws.
The Registrant maintains liability insurance for the benefit of its
directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The Exhibits filed herewith or incorporated by reference herein are
set forth in the Exhibit Index filed as part of this registration statement.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement
to include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the intimal bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in
this registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant
to the provisions set forth or described in Item 6 of this
Registration Statement, or otherwise, the registrant has
been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer of controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether
such indemnification by itself is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1993, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Village of Itasca, State of Illinois, on this 9/th/ day
September, 1998.
FIRST MIDWEST BANCORP, INC.
By: ROBERT P. O'MEARA
---------------------------------------
Robert P. O'Meara
Chairman of the Board and Chief Executive Officer
POWER OF ATTORNEY
The undersigned officers and directors of First Midwest Bancorp, Inc.,
do hereby constitute and appoint Robert P. O'Meara and Donald J. Swistowicz, and
either one of them, as their attorneys-in-fact with power and authority to do
any and all acts and things and to execute any and all instruments which said
attorneys-in-fact, and either one of them, determine may be necessary or
advisable or required to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules or regulations or requirements of the
Securities and Exchange Commission in connection with this Registration
Statement. Without limiting the generality of the foregoing power and authority,
the powers granted include the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated below to the
Registration Statement, to any and all amendments, both pre-effective and post-
effective, and supplements to this Registration Statement, and to any and all
instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereto, and each of the
undersigned hereby ratifies and confirms all that said attorneys-in-fact or any
of them shall do or cause to be done by virtue hereof. This Power of Attorney
may be signed in several counterparts.
Pursuant to the requirements of the Securities Act of 1993, this
Registration Statement has been signed on this 9/th/ day September, 1998 by the
following persons in the capacities indicated.
Signatures Capacity
- -------------------------------------- --------------------------------------
ROBERT P. O'MEARA
- --------------------------------------
Robert P. O'Meara Chairman of the Board of Directors
and Chief Executive Officer
ANDREW B. BARBER
- --------------------------------------
Andrew B. Barber Honorary Chairman of the Board of
Directors
JOHN M. O'MEARA
- --------------------------------------
John M. O'Meara President, Chief Operating Officer and
Director
6
<PAGE>
DONALD J. SWISTOWICZ
- --------------------------------
Donald J. Swistowicz Executive Vice President, Chief Financial
and Accounting Officer
VERNON A. BRUNNER
- --------------------------------
Vernon A. Brunner Director
BRUCE S. CHELBERG
- --------------------------------
Bruce S. Chelberg Director
WILLIAM J. COWLIN
- --------------------------------
William J. Cowlin Director
O. RALPH EDWARDS
- --------------------------------
O. Ralph Edwards Director
JOSEPH W. ENGLAND
- --------------------------------
Joseph W. England Director
BROTHER JAMES GAFFNEY, FCS
- --------------------------------
Brother James Gaffney, F.C.S. Director
THOMAS M. GARVIN
- --------------------------------
Thomas M. Garvin Director
JACK PAYAN
- --------------------------------
Jack Payan Director
JOHN L. STERLING
- --------------------------------
John L. Sterling Director
J. STEPHEN VANDERWOUDE
- --------------------------------
J. Stephen Vanderwoude Director
RICHARD T. WOJCIK
- --------------------------------
Richard T. Wojcik Director
7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequential
Exhibit Page
Number Description of Documents Number
- ---------- ----------------------------------------------------------------------------- ----------
<C> <S> <C>
4.1 Amended and Restated Rights Agreement, Form of Rights Certificate and
Designation of Series A Preferred Stock of the Registrant, dated November
15, 1995 is incorporated herein by reference to Exhibits (1) through (3) of -
the Registrant's Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on November 21, 1995.
4.2 First Amendment to Rights Agreement, dated June 18, 1997, is -
incorporated herein by reference to Exhibit 4 of the Registrant's
Amendment No. 2 to the Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on June 30, 1997.
5 Opinion of Vedder, Price, Kaufman & Kammholz. 9
23.1 Consent of Vedder, Price, Kaufman and Kammholz (contained in the 9
opinion filed as Exhibit 5).
23.2 Consent of Ernst & Young LLP. 10
23.3 Consent of KPMG Peat Marwick LLP 11
23.4 Consent of Grant Thornton LLP. 12
24 Power of Attorney (set forth on the signature page hereof). 6
99 Restated Nonqualified Retirement Plan. 13
</TABLE>
8
<PAGE>
EXHIBIT 5
---------
Vedder, Price, Kaufman & Kammholz
222 North LaSalle Street
Chicago, IL 60601
September 9, 1998
First Midwest Bancorp, Inc.
300 Park Blvd., Suite 405
P.O. Box 459
Itasca, IL 60143-0459
Re: First Midwest Bancorp, Inc.
Registration Statement on Form S-8
Non-Qualified Retirement Plan
-----------------------------
Gentlemen:
We are acting as special counsel to First Midwest Bancorp, Inc. (the
"Corporation") in connection with the filing with the Securities and Exchange
Commission of a Registration Statement on Form S-8 (the "Registration
Statement") for the purpose of registering $10,000,000 of Deferred Compensation
Obligations which represent unsecured obligations of the Company to pay deferred
compensation in the future in accordance with the terms of the First Midwest
Bancorp, Inc. Nonqualified Retirement Plan (the "Plan") and 150,000 shares of
common stock, $.01 par value per share, of the Company, including preferred
share purchase rights (collectively, "Common Stock") which may be issued in
satisfaction of such obligations. In such capacity, we have examined the
Restated Certificate of Incorporation and By-laws of the Company, the Plan, and
such other documents of the Company as we have deemed necessary or appropriate
for the purposes of the opinions express herein.
In connection with our opinion below, we have examined originals, or
copies, certified or otherwise identified to our satisfaction, of the
Registration Statement, the Certificate of Incorporation and the By-laws of the
Corporation, as amended, as well as such other corporate records, documents and
other papers as we deemed necessary to examine for purposes of this opinion. In
making such examination, we have assumed as true, without independent review or
verification, facts certified to us by certain executive officers of the
Corporation and by public officials.
Based upon the foregoing, we advise you that, in our opinion, when issued
in accordance with the provisions of the Plan: (i) the Deferred Compensation
Obligations will be valid and binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws of general applicability relating to or
affecting enforcement of creditors' rights or by general equity principles; and
(ii) the shares of Common Stock will be duly authorized, validly issued, fully
paid and non-assessable.
We hereby consent to filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
come under the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, or under the rules and regulators of the Securities
and Exchange Commission thereunder.
Very truly yours,
/s/VEDDER, PRICE, KAUFMAN & KAMMHOLZ
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the First Midwest Bancorp, Inc. Nonqualified
Retirement Plan of our report dated January 20, 1998, with respect to the 1997
consolidated financial statements of First Midwest Bancorp, Inc. included in its
Annual Report (Form 10-K) for the year ended December 31, 1997, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Chicago, Illinois
September 8, 1998
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
The Board of Directors
First Midwest Bancorp, Inc.
We consent to the incorporation by reference in the registration statement
on Form S-8 of First Midwest Bancorp, Inc. pertaining to the First Midwest
Bancorp, Inc. Nonqualified Retirement Plan of our report dated January 19, 1996,
relating to the consolidated statements of income, changes in stockholders'
equity and cash flows of First Midwest Bancorp, Inc. and subsidiaries for the
year ended December 31, 1995, which report appears in December 31, 1997 annual
report on Form 10-K of First Midwest Bancorp, Inc.
KPMG PEAT MARWICK LLP
Chicago, Illinois
September 8, 1998
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We have issued our report dated May 23, 1997, on the consolidated financial
statements of SparBank, Incorporated and Subsidiary as of December 31, 1996 and
for each of the two years in the period ended December 31, 1996, included in the
Annual Report on Form 10-K of First Midwest Bancorp, Inc. for the year ended
December 31, 1997. We hereby consent to the incorporation by reference of our
report in the First Midwest Bancorp Registration Statement on Form S-8
pertaining to the First Midwest Bancorp, Inc. Non-Qualified Retirement Plan.
/s/ GRANT THORNTON LLP
Chicago, Illinois
September 4, 1998
<PAGE>
Exhibit 99
- --------------------------------------------------------------------------------
First Midwest Bancorp, Inc.
- --------------------------------------------------------------------------------
Nonqualified Retirement Plan
Plan Document
As Amended and Restated
Effective as of January 1, 1998
<PAGE>
Nonqualified Retirement Plan
Plan Document
Table of Contents
<TABLE>
<CAPTION>
Page #
------
<S> <C> <C>
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
A.3 Section 415/401(a)(17) Benefit.....................................9
A.4 Deferred Compensation Benefit......................................9
A.5 Payment...........................................................10
A.6 Vesting...........................................................11
</TABLE>
i
<PAGE>
<TABLE>
<S> <C> <C>
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
</TABLE>
ii
<PAGE>
FIRST MIDWEST BANCORP, INC.
NONQUALIFIED PENSION PLAN, NONQUALIFIED SAVINGS
AND PROFIT SHARING PLAN AND
NONQUALIFIED EMPLOYEE STOCK OWNERSHIP PLAN
------------------------------------------
ARTICLE 5
5.1 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.
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
<PAGE>
5.2 Effective Date.
The Nonqualified Plan, as amended and restated herein, is effective as of
January 1, 1998.
5.3 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 6
6.1 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 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.
6.2 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
2
<PAGE>
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 7
7.1 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.
7.2 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:
(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))
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<PAGE>
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 (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.
7.3 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.
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<PAGE>
7.4 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 8
8.1 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.
8.2 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.
8.3 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.
8.4 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.
8.5 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.
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<PAGE>
8.6 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.
8.7 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.
8.8 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.
8.9 Gender and Number.
Whenever the context requires or permits, the gender and number of words
shall be interchangeable.
ARTICLE 9
9.1 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 10
10.1 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
------------------------------------------
1. Nonqualified Pension Plan
a. 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:
i. 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
ii. 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
iii. 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.
b. 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:
i. 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 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
ii. 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
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<PAGE>
iii. 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.
c. 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:
i. 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).
ii. 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.
d. 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:
i. 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.
ii. The aggregate amount of benefit to which he is entitled under the
Pension Plan and under Section A.3 of this Nonqualified Pension Plan.
e. 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
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<PAGE>
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 Section 162(m), as
the earliest Payment Date upon which such limitations would not apply.
f. 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.
g. Distribution of Accrued Benefit.
i. 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.
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<PAGE>
ii. 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.
(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.
iii. 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.
h. 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:
i. Prior to the establishment of a Nonqualified Trust, the earnings to be
credited
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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).
ii. 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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<PAGE>
FIRST MIDWEST BANCORP, INC.
NONQUALIFIED PENSION PLAN, NONQUALIFIED SAVINGS
AND PROFIT SHARING PLAN AND
NONQUALIFIED EMPLOYEE STOCK OWNERSHIP PLAN
------------------------------------------
2. Nonqualified Savings and Profit Sharing Plan
a. 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.
i. "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.
ii. "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.
iii. "Nonqualified Plan" shall mean the First Midwest Bancorp Nonqualified
Pension Plan, as amended and restated from time to time, or any successor plan
thereto.
iv. "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
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<PAGE>
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.
v. "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.
vi. "Payment Date" shall mean March 1 of each calendar year.
vii. "Profit Sharing Participant" shall mean a Participant with respect to
whom Excess Profit Sharing Contributions are made during a Plan Year.
viii. "Savings Participant" shall mean a Participant in the Savings Plan to
the extent of his participation in the Savings Plan.
ix. "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.
x. "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.
xi. "Valuation Date" shall mean December 31 of each calendar year.
b. Participation.
i. 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
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<PAGE>
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.
ii. 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.
iii. 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 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.
c. 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
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<PAGE>
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 been received. This reserve shall be credited
with interest in accordance with Section B.5 below.
d. 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.
e. 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:
i. 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).
ii. 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.
f. 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
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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.
g. 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.
h. 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.
i. 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 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
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apply.
j. Distribution of Amounts Attributable to Excess Profit Sharing
Contributions.
Notwithstanding anything in this Nonqualified Savings and Profit Sharing
Plan to the contrary:
i. 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.
ii. 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 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.
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FIRST MIDWEST BANCORP, INC.
NONQUALIFIED PENSION PLAN, NONQUALIFIED SAVINGS
AND PROFIT SHARING PLAN AND
NONQUALIFIED EMPLOYEE STOCK OWNERSHIP PLAN
------------------------------------------
3. Nonqualified ESOP
-----------------
a. 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.
i. "ESOP Participant" shall mean a Participant with respect to whom
Excess ESOP Contributions are made during a Plan Year.
ii. "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.
iii. "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).
iv. "Payment Date" shall mean March 1 of each calendar year.
v. "Valuation Date" shall mean December 31 of each calendar year.
b. 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. 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
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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.
d. 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:
i. 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).
ii. 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.
e. 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 the fact that some or all of his interest in
the reserve shall have become nonforfeitable.
f. 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
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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.
g. Distribution of Amounts Reserved.
Notwithstanding anything in this Nonqualified ESOP to the contrary:
i. 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.
ii. 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 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
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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.
_______________________________________
Executive Vice President
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