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**CHANGE IN CONTROL TERMINATION BENEFITSAGREEMENT**

 

This Change in ControlTermination Benefits Agreement ("Agreement") is made and entered into as of January 14, 2013, by and between FIRSTINTERNET BANCORP, an Indiana corporation (the "Company"), and KAY WHITAKER ("Executive").

 

WITNESSETH

 

WHEREAS, the Companyis the parent company of First Internet Bank of Indiana, an Indiana financial institution (the "Bank"); and

 

WHEREAS, Executive isemployed as a senior officer of the Bank as of the date of this Agreement; and

 

WHEREAS, Executive alsoserves as a senior officer of the Company; and

 

WHEREAS, the Companybelieves that Executive will make valuable contributions to the productivity and profitability of the Bank and the Company; and

 

WHEREAS, the Companydesires to encourage Executive to continue to make such contributions and not to seek or accept employment elsewhere; and

 

WHEREAS, the Company,therefore, desires to assure Executive of certain benefits in case of any termination or significant redefinition of the termsof her employment with the Bank subsequent to any Change in Control of the Company;

 

NOW, THEREFORE, in considerationof the foregoing and of the mutual covenants herein contained and the mutual benefits herein provided, the Company and Executivehereby agree as follows:

 

1.          Theterm of this Agreement shall be from the date hereof through December 31, 2013; provided, however, that commencing on January1, 2014, and each anniversary thereof, this Agreement shall be automatically extended for successive terms of one (1) year eachunless either party provides written notice not to so extend to the other party at least sixty (60) calendar days before the endof the then current term, in which case no further automatic extension shall occur; and provided further that, notwithstandingany other provision of this Agreement, if a Change in Control of the Company occurs during the term of this Agreement, the termof this Agreement shall be automatically extended to the second annual anniversary of the Change in Control, at which time theAgreement will expire.

 

2.          Asused in this Agreement, "Change in Control" of the Company means:

 

 

(A)         Theacquisition, within a 12-month period ending on the date of the most recent acquisition, by any individual, entity or group (withinthe meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")(a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Actas in effect from time to time) of thirty percent (30%) or more of the combined voting power of the then outstanding voting securitiesof the Company entitled to vote generally in the election of directors; provided, however, that the following acquisitions shallnot constitute an acquisition of control: (i) any acquisition by a Person who, immediately before the commencement of the12-month period, already held beneficial ownership of thirty percent (30%) or more of that combined voting power; (ii) anyacquisition directly from the Company (excluding an acquisition by virtue of the exercise of a conversion privilege), (iii) anyacquisition by the Company, (iv) any acquisition by any employee benefit plan (or related trust) sponsored or maintained bythe Company or any corporation controlled by the Company, or (v) any acquisition by any corporation pursuant to a reorganization,merger or consolidation, if, following such reorganization, merger or consolidation, the conditions described in clauses (i),(ii) and (iii) of subsection (C) below are satisfied;

 

(B)         Thereplacement of at least fifty-five percent (55%) of members of the Board of Directors of the Company during any 12-month period,by members whose appointment or election is not endorsed by a majority of the members of the Board of Directors prior to the dateof the appointment or election;

 

(C)         Areorganization, merger or consolidation, in each case, unless, following such reorganization, merger or consolidation, (i) morethan fifty-five percent (55%) of, respectively, the then outstanding shares of common stock of the corporation resulting from suchreorganization, merger or consolidation and the combined voting power of the then outstanding voting securities of such corporationentitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or substantiallyall of the individuals and entities who were the beneficial owners, respectively, of the outstanding Company common stock and outstandingCompany voting securities immediately prior to such reorganization, merger or consolidation in substantially the same proportionsas their ownership, immediately prior to such reorganization, merger or consolidation, of the outstanding Company stock and outstandingCompany voting securities, as the case may be, (ii) no Person (excluding the Company, any employee benefit plan or relatedtrust of the Company or such corporation resulting from such reorganization, merger or consolidation and any Person beneficiallyowning, immediately prior to such reorganization, merger or consolidation, directly or indirectly, thirty percent (30%) or moreof the outstanding Company common stock or outstanding voting securities, as the case may be) beneficially owns, directly or indirectly,thirty percent (30%) or more of, respectively, the then outstanding shares of common stock of the corporation resulting from suchreorganization, merger or consolidation or the combined voting power of the then outstanding voting securities of such corporationentitled to vote generally in the election of directors and (iii) at least fifty-five (55%) of the members of the board ofdirectors of the corporation resulting from such reorganization, merger or consolidation were members of the Board of Directorsof the Company at the time of the execution of the initial agreement providing for such reorganization, merger or consolidation;

 

(D)         Acomplete liquidation or dissolution of the Company; or

 

 

(E)         Thesale or other disposition of all or substantially all of the assets of the Company or of a majority of the combined voting powerof the then outstanding voting securities of the Bank entitled to vote generally in the election of directors of the Bank, otherthan any of the following dispositions of such assets or securities: (i) to a corporation with respect to which following suchsale or other disposition (x) more than fifty-five percent (55%) of, respectively, the then outstanding shares of common stockof such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to votegenerally in the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individualsand entities who were the beneficial owners, respectively, of the outstanding Company common stock and outstanding Company votingsecurities immediately prior to such sale or other disposition in substantially the same proportion as their ownership, immediatelyprior to such sale or other disposition, of the outstanding Company common stock and outstanding Company voting securities, asthe case may be, (y) no Person (excluding the Company and any employee benefit plan or related trust of the Company or suchcorporation and any Person beneficially owning, immediately prior to such sale or other disposition, directly or indirectly, thirtypercent (30%) or more of the outstanding Company common stock or outstanding Company voting securities, as the case may be) beneficiallyowns, directly or indirectly, thirty percent (30%) or more of, respectively, the then outstanding shares of common stock of suchcorporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generallyin the election of directors and (z) at least fifty-five percent (55%) of the members of the board of directors of such corporationwere members of the Board of Directors of the Company at the time of the execution of the initial agreement or action of the Boardproviding for such sale or other disposition of assets of the Company; (ii) to a shareholder of the Company in exchange foror with respect to its stock; (iii) to a Person that owns, directly or indirectly, fifty-five percent (55%) or more of thetotal value or voting power of all outstanding stock of the Company; or (iv) to an entity, at least fifty-five percent (55%)or more of the total value or voting power of which is owned, directly or directly, by the Company or by a Person described inclause (iii).

Despite any other provision ofthis Section 2 to the contrary, an occurrence shall not constitute a Change in Control if it does not constitute a changein the ownership or effective control, or in the ownership of a substantial portion of the assets of, the Company within the meaningof Section 409A(a)(2)(A)(v) of the Internal Revenue Code of 1986, as amended (the "Code"), and its interpretiveregulations.

 

3.          Subjectto Sections 5, 6 and 8, the Company shall provide Executive with the benefits set forth in Section 8 of this Agreement uponany termination of Executive's employment by the Company within twenty-four (24) months following a Change in Control for any reasonexcept the following:

 

(A)         Terminationof employment by reason of Executive's death.

 

 

(B)         Terminationof employment by reason of Executive's Disability. For purposes of this Agreement, the term “Disability” meanseither (i) when Executive is deemed disabled and entitled to benefits in accordance with any Company-provided long-term disabilityinsurance policy or plan, if any is applicable, covering Executive, (ii) the inability of Executive, because of injury, illness,disease or bodily or mental infirmity, to perform, with or without reasonable accommodation, the essential functions of her jobfor more than ninety (90) consecutive days, or (iii) the inability of Executive, because of injury, illness, disease or bodilyor mental infirmity, to perform, with or without reasonable accommodation, the essential functions of her job for more than onehundred twenty (120) days during any period of twelve (12) consecutive months.

 

(C)         Terminationof employment after Executive has reached her normal retirement date, which for purposes of this Agreement shall be deemed to bethe end of the month during which Executive reaches sixty-five (65) years of age.

 

(D)         Terminationof employment for Cause. For purposes of this Agreement, “Cause” means the occurrence of one or more of thefollowing events: (i) Executive’s conviction for, or pleading no contest to, a felony, any crime involving moral turpitude,or any crime that is injurious to the financial condition, reputation or goodwill of the Company (or any of its Affiliates); (ii) Executive’smisappropriation of any of the Company's (or any of its Affiliate's) property; (iii) Executive’s engaging in any fraudulentor dishonest conduct in her dealings with, or on behalf of, the Company (or any of its Affiliates); (iv) Executive’sfailure or refusal to follow the lawful instructions of the Executive's superior or of the Company's Board of Directors (otherthan any such failure or refusal resulting from Executive's incapacity due to physical or mental illness), if such failure or refusalcontinues for a period of ten (10) days after the Company provides Executive with written notice stating the instructions whichExecutive has failed or refused to follow; (v) Executive’s breach of her obligations under this Agreement or any otheragreement with the Company (or the Bank) and such breach, if curable, remains uncured for a period of ten (10) days after the Companyprovides Executive with written notice of such breach; (vi) Executive’s material violation of any of the Company's (orthe Bank's) written policies or procedures, including, without limitation, any employee policies, business ethics policies or codeof conduct policies, and such violation, if curable, remains uncured for a period of ten (10) days after the Company provides Executivewith written notice of such violation; (vii) Executive's engaging in any willful misconduct which is injurious to the financialcondition, reputation or goodwill of the Company (or any of its Affiliates); (viii) Executive's violation of any law or regulationin the course of performance of her job duties; or (ix) Executive's misuse of alcohol or drugs which materially interfereswith Executive's performance of her duties for the Company or which is injurious to the reputation or goodwill of the Company (orany of its Affiliates).

 

4.          Subjectto Sections 5, 6 and 8, the Company shall also provide Executive with the benefits set forth in Section 8 of this Agreementif Executive terminates her employment for Good Reason within twenty-four (24) months following a Change in Control. For purposesof this Agreement, the term "Good Reason" means the occurrence of any of the following events without Executive'sconsent: (a) a reduction by the Company in Executive's base salary from the level of such salary immediately prior to theChange in Control; (b) a material change in Executive's status, title, position, responsibilities or reporting requirementswhich represents a material adverse change in her status, title, position or responsibilities as in effect immediately prior tothe Change in Control; or (c) the Company relocates Executive's principal place of employment to a location that is more thanthirty (30) miles from Indianapolis, Indiana, or the Company office or facility at which Executive was based immediately priorto such relocation.

 

 

5.          Notwithstandingthe foregoing or any other provision hereof, for purposes of this Agreement, the termination of Executive's employment shall meanthe termination of Executive's employment with the Company, the Bank and all Affiliates; provided, however, no such event shallconstitute a termination of employment unless it constitutes a "separation of service" under Code Section 409A and itsinterpretive regulations and other regulatory guidance. For purposes of this Agreement, the term "Affiliate" meansthe Bank or any other Person (i) that owns, directly or indirectly, a majority of the voting power, voting equity securities,or other equity interests of the Company or of another entity that owns such a majority interest in the Company or (ii) ofwhich a majority of its voting power or its voting equity securities or equity interests is owned, directly or indirectly, by theCompany or by another entity of which the Company owns such a majority interest.

 

6.          Notwithstandingthe foregoing or any other provision hereof, if, immediately after the Change in Control, Executive is employed with the Changein Control Successor, no termination of employment will be deemed to have occurred at the time of the Change in Control, providedthe Change in Control Successor has assumed the obligation to perform this Agreement. For purposes of this Agreement, the term"Change in Control Successor" means any Person that acquires or succeeds to the Company's business in a Changein Control transaction or any of such Person's Affiliates.

 

7.          Anytermination by Company of Executive's employment as contemplated by Section 3 hereof (except subsection 3(A)) or anyresignation by Executive as contemplated by Section 4 hereof shall be communicated by a written notice to the other partyhereto. Any notice given by Executive pursuant to Section 4 or given by the Company in connection with a termination as towhich the Company believes it is not obligated to provide Executive with benefits set forth in Section 8 hereof shall indicatethe specific provisions of this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimedto provide a basis for such termination.

 

8.          Subjectto the conditions and exceptions set forth in Section 3 and Section 4 hereof, the following benefits, less any amountsrequired to be withheld therefrom under any applicable federal, state or local income tax, other tax, or social security laws orsimilar statutes, shall be paid to Executive:

 

(A)         Executiveshall be paid, at her then effective salary, for services performed through the date of the termination or her employment in accordancewith applicable law.

 

 

(B)         Subjectto subsections 8(C) and 8(D) hereof, within thirty (30) days following such a qualifying termination of employment, Executive shallbe paid a lump sum payment of an amount equal to two (2) times the sum of (i) Executive's base annual salary as of the dateof termination of Executive's employment plus (ii) the Imputed Bonus (the "Severance Amount"). For purposesof this Agreement, the term "Imputed Bonus" means the greater of (a) the annual bonus Executive received for themost recent year end or (b) an amount equal to fifty percent (50%) of Executive's base annual salary as of the date of terminationof Executive's employment.

 

(C)         Executiveacknowledges and agrees that payment of the Severance Amount in accordance with subsection 8(B) shall be deemed to constitute afull settlement and discharge of any and all obligations of the Company to Executive arising out of her employment with the Company(and any Affiliate) and the termination thereof, except for any vested rights Executive may then have under any insurance, pension,supplemental pension, thrift, employee stock ownership, or stock option plans sponsored or made available by the Company. Executiveacknowledges and agrees that as a condition to receiving the Severance Amount pursuant to subsection 8(B), Executive willexecute and deliver to the Company a release agreement in a form prepared by and satisfactory to the Company (the "ReleaseAgreement") pursuant to which Executive will release and waive all claims against the Company, its Affiliates (includingthe Bank) and all of its and their present and/or former owners, officers, directors, employees, agents, attorneys, representatives,insurers, employee benefit plans and their fiduciaries, both individually and in their representative capacities, including, withoutlimitation, all claims arising out of this Agreement, Executive's employment with the Company or the Bank, and/or the terminationof employee's employment with the Company and/or the Bank; provided, however, the Release Agreement shall not affect or release(i) any claim for salary earned by Executive prior to the employment termination date; (ii) any claims for reimbursementof business expenses incurred prior to the employment termination date; (iii) the rights to the Severance Amount under subsection 8(B)of this Agreement; or (iv) any vested rights Executive may then have under any insurance, pension, supplemental pension, thrift,employee stock ownership or stock option plan sponsored or made available by the Company, including without limitation any vestedrights under Executive's Supplemental Executive Retirement Agreement.

 

(D)         Ifas of the date her employment terminates, Executive is a "specified employee" within the meaning of Code Section 409A(a)(2)(B)(i),and the Company has stock that is publicly traded on an established securities market or otherwise, any deferred compensation paymentsotherwise payable because of employment termination will be suspended until, and will be paid to Executive on, the first day ofthe seventh month following the month in which Executive's last day of employment occurs. For purposes of this subsection 8(D),"deferred compensation" means compensation provided under a nonqualified deferred compensation plan as defined in, andsubject to, Section 409A of the Code.

 

 

(E)         Anythingin this Agreement to the contrary notwithstanding, no payment or distribution by the Company or any of its Affiliates to or forthe benefit of the Executive of the Severance Amount or any other amount in the nature of compensation (whether paid or payableor distributed or distributable pursuant to the terms of this Agreement or otherwise) (a "Payment") will be paidthat would be subject to the excise tax or denial of deduction imposed by Sections 280G and 4999 of the Code (an "ExcessParachute Payment"). In the event that the Company determines that any Payment would constitute an Excess Parachute Payment,the Company will provide to the Executive, within thirty (30) days after the Executive's employment termination date,an opinion of a certified public accounting firm selected by the Company (the "Accounting Firm") that the Executivewill be considered to have received Excess Parachute Payments if the Executive were to receive the full amounts described pursuantto this Agreement or otherwise and setting forth with particularity the smallest amount by which the Payments would have to bereduced to avoid the imposition of any excise tax or the denial of any deduction pursuant to Code Sections 280G and 4990. The Paymentsshall be adjusted, in the order of priority designated by the Executive in written instructions, to the minimum extent necessaryso that none of the Payments, in the opinion of the Accounting Firm, would constitute an Excess Parachute Payment. Any determinationby the Accounting Firm shall be binding upon the Company and the Executive. All fees and expenses of the Accounting Firm shallbe borne by the Company.

 

9.          Executiveis not required to mitigate the amount of benefit payments to be made by the Company pursuant to this Agreement by seeking otheremployment or otherwise, nor shall the amount of any benefit payments provided for in this Agreement be reduced by any compensationearned by Executive as a result of employment by another employer or which might have been earned by Executive had Executive soughtsuch employment, after the date of termination of her employment with the Company or otherwise.

 

10.         ShouldExecutive die while any amounts are payable to her hereunder, this Agreement shall inure to the benefit of and be enforceable byExecutive's executors, administrators, heirs, distributees, devisees and legatees and all amounts payable hereunder shall be paidin accordance with the terms of this Agreement to Executive's devisee, legatee or other designee or if there be no such designee,to her estate.

 

11.         Anynotice required or permitted under this Agreement shall be in writing and either delivered personally or sent by nationally recognizedovernight courier, express mail, or certified or registered mail, postage prepaid, return receipt requested, at the following respectiveaddress unless the party notifies the other party in writing of a change of address:

 

If to Executive:

 

Kay Whitaker

5245 N. PennsylvaniaStreet

Indianapolis, IN 46220

 

If to the Company:

 

First Internet Bancorp

9200 Keystone Crossing,Suite 800

Indianapolis, Indiana46240

Attention: Chief ExecutiveOfficer

 

 

A notice delivered personally shall bedeemed delivered and effective as of the date of delivery. A notice sent by overnight courier or express mail shall be deemed deliveredand effective the next business day after it is deposited with the postal authority or commercial carrier. A notice sent by certifiedor registered mail shall be deemed delivered and effective three (3) days after it is deposited with the postal authority.

 

12.         ThisAgreement shall be interpreted and enforced in accordance with the laws of the State of Indiana (without application of its conflict-of-lawprinciples). The parties agree that any legal action relating to this Agreement shall be commenced and maintained exclusively beforeany appropriate state court of record in Marion County, Indiana, or in the United States District Court for the Southern Districtof Indiana, Indianapolis Division; further, the parties hereby irrevocably submit to the jurisdiction and venue of such courtsand waive any right to challenge or otherwise object to personal jurisdiction or venue in any action commenced or maintained insuch courts.

 

13.         Noprovision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to inwriting signed by Executive and a duly authorized officer of the Company. No waiver by any party hereto at any time of any breachby any other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other partyshall be deemed a waiver of similar or dissimilar provisions or conditions at the same or any prior or subsequent time. The invalidityor unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provisionof this Agreement, which shall remain in full force and effect.

 

14.         TheCompany shall have the right to assign this Agreement to any Affiliate or a Change in Control Successor. This Agreement shall inureto the benefit of, and may be enforced by, any and all successors and assigns of the Company, including without limitation by assetassignment, stock sale, merger, consolidation or other corporate reorganization. Executive shall not have the right to assign thisAgreement. Without limiting the foregoing, Executive's right to receive payments hereunder shall not be assignable or transferable,whether by pledge, creation of a security interest or otherwise, other than a transfer by her Will or by the laws of descent anddistribution as set forth in Section 10 hereof, and in the event of any attempted assignment or transfer contrary to thisSection 14, the Company shall have no liability to pay any amount so attempted to be assigned or transferred.

 

15.         TheCompany may withhold from any compensation or benefits payable under this Agreement all federal, state, city, or other taxes asmay be required pursuant to any law or governmental regulation or ruling.

 

16.         Anybenefits payable under this Agreement shall be paid solely from the general assets of the Company. Neither Executive nor Executive'sestate shall have interest in any specific assets of the Company under the terms of this Agreement. This Agreement shall not beconsidered to create an escrow account, trust fund or other funding arrangement of any kind between Executive and the Company.Nothing herein contained shall require or be deemed to require, or prohibit or be deemed to prohibit, the Company to segregate,earmark or otherwise set aside any funds or other assets, in trust or otherwise, to provide for any payments to be made or requiredhereunder.

 

 

17.         ThisAgreement does not affect or alter the at-will nature of Executive's employment relationship nor guarantee or require that Executive'semployment will last for any specific duration of time.

 

18.         ThisAgreement constitutes the entire agreement of the parties with respect to the subjects specifically addressed herein, and supersedesany prior agreements, understandings, or representations, oral or written, on the subjects addressed herein.

 

19.         ThisAgreement shall be interpreted and applied in a manner consistent with the applicable standards for nonqualified deferred compensationplans established by Section 409A of the Code and its interpretive regulations and other regulatory guidance. To the extent thatany terms of this Agreement would subject Executive to gross income inclusion, interest, or additional tax pursuant to Section409A of the Code, those terms are to that extent superseded by, and shall be adjusted to the minimum extent necessary to satisfy,the applicable Section 409A of the Code standards.

 

20.         ThisAgreement may be executed in one or more counterparts (or upon separate signature pages bound together into one or more counterparts),all of which taken together shall constitute one agreement. Signatures transmitted by facsimile or other electronic means are acceptablefor execution of this Agreement.

 

IN WITNESS WHEREOF, theparties have caused this Agreement to be executed and delivered as of the day and year first above set forth.