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CONFIDENTIAL
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EXHIBIT 10
Republic Bancorp Inc.
October 19, 2000
Dana M. Cluckey, President and Chief Executive Officer
Republic Bancorp Inc.
1070 East Main Street
Owosso, MI 48867
Re: Management Retention Agreement
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Dear Dana:
The Board of Directors of the Corporation (Board) of Republic Bancorp
Inc. (Corporation) recognizes the possibility of a change in control of the
Corporation and understands that this may give rise to uncertainties and
questions on your part that could be distracting to you in a way that is
detrimental to the Corporation and its stockholders.
Upon recommendation of the Personnel Committee, the Board has
determined that appropriate steps should be taken to reinforce and encourage
your continued attention and dedication to your assigned duties as our President
and CEO, notwithstanding the possibility of a change in control of the
Corporation.
In order to induce you to remain in the employ of the Corporation, and
as consideration for your execution of the release described in Subsection
4(ii)(A), which release is an integral part of this Agreement, the Corporation
agrees that you shall receive the severance benefits set forth in this letter
agreement (Agreement) in the event your employment with the Corporation is
terminated in connection with a "change in control of the Corporation" (as
defined in Section 2) in the circumstances described below.
1. Term of Agreement. This Agreement shall commence on the date hereof
and shall continue in effect while you continue to be employed by the
Corporation, and for such further period as may be required for the Corporation
to perform its obligations hereunder in the event of the termination of your
employment in circumstances giving rise to your entitlement to benefits as
provided in Subsection 4(ii).
2. Change in Control. No benefits shall be payable hereunder unless
there shall have been a change in control of the Corporation. For purposes of
this Agreement, a "change in control of the Corporation" shall be deemed to have
occurred upon the purchase or other acquisition by any person, entity or group
of persons, within the meaning of section 13(d) or 14(d) of the Securities
Exchange Act of 1934 (Act), or any comparable successor provisions, of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Act) of more than 50 percent of either the outstanding shares of common stock or
the combined voting power of the Corporation's then outstanding voting
securities entitled to vote generally, or the approval by the stockholders of
the Corporation of a reorganization, merger, or consolidation, in each
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case, with respect to which persons who were stockholders of the Corporation
immediately prior to such reorganization, merger or consolidation do not
immediately thereafter, own more than 50 percent of the combined voting power
entitled to vote generally in the election of directors of the reorganized,
merged or consolidated Corporation's then outstanding securities, or a
liquidation or dissolution of the Corporation or of the sale of all or
substantially all of the Corporation's assets.
3. Termination Associated with Change in Control. If any of the events
described in Section 2 constituting a change in control of the Corporation shall
have occurred, you shall be entitled to the benefits provided in Subsection
4(ii) should your employment be terminated during a period (Termination Benefit
Period) beginning 6 months before and ending 2 years following the effective
date of such change in control of the Corporation, unless such termination is
(A) because of your death, disability or voluntary Retirement, (B) by the
Corporation for Cause, or (C) by you other than for Good Reason.
(i) Voluntary Retirement. Termination by you of your employment
based on voluntary "Retirement" shall mean voluntary
termination which you elect in accordance with the
Corporation's retirement policy (including any early
retirement policy adopted before a change in control of the
Corporation) generally applicable to its salaried employees or
in accordance with any retirement arrangement established for
you by the Corporation (and with your consent).
(ii) Cause. Termination by the Corporation of your employment for
"Cause" shall mean termination upon
(A) the continued failure by you to remedy material and
substantial deficiencies in your performance of the
duties associated with your employment by the
Corporation within 30 days following the date a
written demand is delivered to you by the Board,
which demand specifically identifies such
deficiencies; provided that you need not respond to
such demand in respect of:
(a) any such failure resulting from your
incapacity due to physical or mental
illness, or
(b) any such actual or anticipated failure after
the issuance of a Notice of Termination by
you for Good Reason, as those terms are
defined in Subsections 3(iv) and 3(iii),
respectively; or
(B) your engagement in conduct which is demonstrably and
materially injurious to the Corporation, monetarily
or otherwise, including but not limited to
embezzlement, theft, fraud or other felony involving
the Corporation or its assets.
Notwithstanding the above, you shall not be deemed to have
been terminated for Cause unless and until there shall have
been delivered to you a copy of a
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resolution duly adopted by the affirmative vote of a majority
of the Board at a meeting of the Board called and held for
such purpose (after at least 10 business days' notice to you
and an opportunity for you to be heard before the Board),
finding that in the good faith opinion of the Board you were
guilty of conduct set forth above in clauses (A) or (B),
specifying the particulars thereof in detail.
(iii) Good Reason. You shall be entitled to terminate your
employment for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean, without your express written
consent, the occurrence after a change in control of the
Corporation of any of the following circumstances unless, in
the case of paragraphs (A), (E), (F) or (G), such
circumstances are fully corrected prior to the Date of
Termination specified in the Notice of Termination, as defined
in Subsections 3(iv) and 3(v), respectively, given in respect
thereof:
(A) the assignment to you of any duties inconsistent with
your status as a senior executive officer;
(B) a reduction in your annual base compensation as in
effect on the date hereof or as the same may be
increased from time to time;
(C) any requirement that you be based anywhere other than
in Michigan, provided that if the principal executive
offices of the Corporation or its successor owner are
relocated and you request assignment to such location
in a senior executive capacity, the denial of such
request shall also constitute Good Reason;
(D) the failure by the Corporation or its successor
owner, without your consent, to pay to you any
portion of your base or incentive compensation when
due;
(E) the failure by the Corporation or its successor owner
to continue to provide you with health, life
insurance, disability, vacation and retirement
benefits substantially equivalent to those provided
to its other key executives;
(F) the failure of the Corporation to obtain a
satisfactory agreement from any successor to assume
and agree to perform this Agreement, as contemplated
in Section 5; or
(G) any purported termination of your employment which is
not effected pursuant to a Notice of Termination
satisfying the requirements of Subsection (iv) below
(and, if applicable, the requirements of Subsection
(ii) above); for purposes of this Agreement, no such
purported termination shall be effective.
Your right to terminate your employment pursuant to this
Subsection shall not be affected by your incapacity due to
physical or mental illness. Your continued
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employment shall not constitute consent to, or a waiver of
rights with respect to, any circumstance constituting Good
Reason hereunder.
(iv) Notice of Termination. Any termination of your employment by
the Corporation, by its successor owner or by you shall be
communicated by written Notice of Termination to the other
party hereto in accordance with Section 6. For purposes of
this Agreement, a "Notice of Termination" shall mean a notice
which shall indicate the specific termination provision in
this Agreement relied upon and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis
for termination of your employment under the provision so
indicated.
(v) Date of Termination "Date of Termination" shall mean 30 days
after Notice of Termination is given.
4. Compensation Upon Termination. Upon termination of your employment
during a Termination Benefit Period associated with a change in control of the
Corporation, you shall be entitled to the following benefits:
(i) If your employment shall be terminated by the Corporation or
its successor owner for Cause or by you other than for Good
Reason, disability, death or voluntary Retirement, the
Corporation shall pay you your full base compensation and
continue to provide you with life, disability, accident,
health insurance, vacation, retirement and other benefits,
through the Date of Termination at the rate or on the terms in
effect at the time Notice of Termination is given, and the
Corporation shall have no further obligations to you under
this Agreement. If it is not known at the time that such
termination is taking place during a Termination Benefit
Period but it is afterwards established that it did take place
during such a Period, then the Corporation shall promptly
provide to you any compensation and/or benefits due under this
Subsection (i) to the extent they were not previously provided
(or the reasonable cash value of coverage or benefits, if it
is no longer possible to provide specific coverage or
benefits).
(ii) If your employment shall be terminated either (a) by the
Corporation or its successor owner other than for Cause,
voluntary Retirement, death or disability or (b) by you for
Good Reason, then you shall be entitled to the benefits
provided under paragraphs (A), (B), (C) and, if applicable,
(D), below:
(A) The Corporation (or successor owner) shall pay you as
severance pay a lump sum severance payment equal to 2
times your annual base compensation, as being paid to
you at the time of termination; provided that if the
sum of payments under paragraphs (A), (B) and (C) of
this subsection (ii) would equal or exceed 3 times
your "base amount" under Section 280G of the Internal
Revenue Code (Code), then payment under this
paragraph (A) shall be reduced (but not below zero)
until the sum of payments under paragraphs (A), (B)
and (C) is equal to the product of 2.99 multiplied by
such base amount. As a condition precedent to the
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payments provided for under paragraphs (A), (B)
and/or (C), you shall be required to execute a
release in the form attached as Exhibit A.
(B) If, as a consequence of the termination of your
employment. you are rendered ineligible to receive a
contribution which would (but for such termination)
have been made by the Corporation to its 401(k) plan
for your account, the Corporation (or successor
owner) shall pay you a cash amount equal to that
contribution. Additionally, for a period of one year
following the date of your termination of employment,
the Corporation (or successor owner) will, at its
expense, continue to cover you and your eligible
dependents under the health and dental programs in
effect at the time of termination of your employment
(or substantially similar coverage if those programs
are changed); provided further that --
(a) Your right to purchase continuation coverage
that may be available under COBRA shall be
deemed to commence upon expiration of the
one-year period of coverage described above.
(b) Your coverage as described above will be
discontinued in the event you receive
substantially similar benefits from a
subsequent employer.
(C) In lieu of --
shares of common stock of the Corporation
(Corporation Shares) issuable upon exercise of
options currently outstanding or hereafter granted to
you --
including but not limited to options issued
under one or more Option Plans of the
Corporation as well tandem options issued
under its Voluntary Management Stock
Accumulation Program
but excluding options which had become
vested or otherwise exercisable by you prior
to termination of your employment --
(which unvested/non-exercisable options shall be
canceled upon the making of the payment referred to
below), and/or
shares of restricted stock of the Corporation
(Restricted Shares), including but not limited to
shares granted under the Corporation's Incentive
Stock Plan (formerly known as the Restricted Stock
Plan), which you are entitled to receive upon lapse
of restrictions that still apply at the time of
termination of your employment (which rights shall be
canceled upon the making of the payment referred to
below),
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you shall receive an amount in cash equal to the
product of (I) the excess of the amount which is the
greater of --
(a) the average of the high bid price and
the low ask price of Corporation Shares at
the close of trading as reported on the
NASDAQ market system on or nearest the Date
of Termination, or
(b) the highest per share price for
Corporation Shares actually paid in
connection with any change in control of the
Corporation,
times (II) the full number of Corporation Shares and
Restricted Shares which you were entitled to acquire,
whether or not you had previously become entitled to
acquire same, reduced by amounts that you would have
been required to pay in exercising options.
If it is not known at the time that such termination
is taking place during a Termination Benefit Period
but it is afterwards established that it did take
place during such a Period, then the Corporation
shall promptly pay you the cash amounts due under
this Subsection (ii) to the extent they were not
previously paid.
(D) If it shall be determined that payments to you
pursuant to this Agreement or any other payment or
benefit from the Corporation, any Affiliate, any
shareholder of the Corporation or any other person
would be subject to the excise tax imposed by Section
4999 of the Code or any similar tax payable under any
United States federal, state, local or other law,
then you shall receive a Tax Gross-Up Payment with
respect to all such excise taxes and similar taxes.
As used in this paragraph (D) --
"Affiliate" means any Person directly or indirectly
controlling, controlled by, or under direct or
indirect common control with the Corporation. For
purposes of this definition, the term "control" when
used with respect to any Person means the power to
direct or cause the direction of management or
policies of such Person, directly or indirectly,
whether through the ownership of voting securities,
by contract, or otherwise.
"Person" means any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated
organization, association, corporation, institution,
public benefit corporation, entity or government
instrumentality, division, agency, body or
department.
"Taxes" means the incremental United States federal,
state and local income, excise and other taxes
payable by you with respect to any applicable item of
income.
"Tax Gross-Up Payment" means an amount payable to you
such that, after payment of Taxes on such amount,
there remains a balance sufficient to pay the Taxes
being reimbursed.
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(E) The payments provided for in paragraphs (A) and (C),
above, shall be made to you, net of applicable
withholding taxes, not later than the fifteenth
business day following the Date of Termination (or
such later date as may be required for observation of
time periods prescribed in the release required by
paragraph (A), above). The payment (in lieu of 401(k)
contribution) provided for in paragraph (B), above,
shall be made to you, net of applicable withholding
taxes, as soon as practicable after the end of the
plan year which included your date of termination.
The payment provided for in paragraph (D), above,
shall be made not later than the fifteenth business
day following the date on which Ernst & Young and
your tax preparer have concurred in the amount of
such payment; provided that if they have not
concurred by a date which is one week prior to the
due date of the Taxes in question, then the
Corporation shall promptly pay to you an estimate, as
determined in good faith by the Corporation, of the
minimum amount of such paragraph (D) payment and
shall pay the remainder of such payment (together
with interest at the rate provided in Section
1274(b)(2)(B) of the Code) as soon as the amount
thereof can be determined. In the event that the
amount of the estimated payment exceeds the amount
subsequently determined to have been due under
paragraph (D), such excess shall constitute a loan by
the Corporation to you, payable on the fifth day
after demand by the Corporation (together with
interest at the rate provided in Section
1274(b)(2)(B) of the Code).
(iii) You shall not be required to mitigate the amount of any
payment provided for in this Section 4 by seeking other
employment or otherwise, nor shall the amount of any payment
or benefit provided for in this Section 4 be reduced by any
compensation earned by you as the result of employment by
another employer, by retirement benefits, by offset against
any amount claimed to be owed by you to the Corporation, or
otherwise, except as specifically provided in this Section 4.
(iv) In addition to all other amounts payable to you under this
Section 4, you shall be entitled to receive all benefits
payable to you under any plan or agreement relating to
retirement benefits.
5. Successors; Binding Agreement.
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(i) The Corporation shall obtain the agreement of any successor
(whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the
business and/or assets of the Corporation to expressly assume
and agree to perform this Agreement in the same manner and to
the same extent that the Corporation would be required to
perform it if no such succession had taken place. If the form
of such succession is (a) an acquisition of the assets or
securities of the Corporation by an entity that is owned or
controlled, directly or indirectly, by a third "person" (as
such term is used in Section 2) or (b) a merger with such an
entity, then the Corporation shall also obtain from such
person (as well as from such entity) an express assumption of
and agreement to perform this
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Agreement in the same manner and to the same extent that the
Corporation would be required to perform it if no such
succession had taken place.
(ii) This Agreement shall inure to the benefit of, and be
enforceable by, your personal or legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees. If you should die while any amount
would still be payable to you hereunder if you had continued
to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement
to the beneficiary designated by you on a form provided by the
Administrator (provided that you may change such beneficiary
from time to time by filing a new form); or, if there is no
such beneficiary, to your estate.
6. Arbitration. Any controversy or claim arising out of or relating to
this Agreement or the breach thereof, shall be settled by binding arbitration in
Ingham County, Michigan in accordance with the laws of the State of Michigan by
three arbitrators, one of whom shall be appointed by the Corporation or its
successor owner, one by you (or in the event of your prior death, your
beneficiary) and the third of whom shall be promptly appointed by the first two
arbitrators. Arbitrators appointed by the parties shall be named within 10
business days following service of the demand for arbitration (Service). The
arbitration shall be conducted as a de novo review in accordance with the
Commercial Arbitration Rules of the American Arbitration Association
(Association). Each party shall instruct its/his selected arbitrator to complete
selection of the third arbitrator within 25 business days following Service. The
parties shall specifically request the Association to require that the
designated arbitrators schedule a hearing no later than 45 business days
following Service, that the hearing be closed within 75 business days following
Service and that the arbitrators issue their award not later than 100 business
days following Service. Judgment upon the award rendered by the arbitrators may
be entered in any court having jurisdiction thereof.
7. Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement, provided that all notice to the Corporation shall be directed to the
attention of the Board with a copy to the Secretary of the Corporation, or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt.
8. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by you and such officer as may be specifically designated
by the Personnel Committee. No waiver by either party hereto at any time of any
breach by the other party hereto of, or in compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No oral agreements or representations with respect to
the subject matter hereof have been made by either party which are not expressly
set forth in this Agreement. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Michigan, except to the extent preempted by Federal law. All references to
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sections of the Exchange Act or the Code shall be deemed also to refer to any
successor provisions to such sections. Any payments provided for hereunder shall
be paid net of any applicable withholding required under federal, state or local
law. Nothing contained in this Agreement shall be deemed to create an employment
contract between you and the Corporation for any fixed period of time or to
change in any respect the nature or extent of your rights to continue in the
employ of the Corporation (subject to the Corporation's obligations to perform
its required obligations under this Agreement).
9. Validity. The invalidity or unenforceability or any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
10. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Corporation the enclosed copy of this letter which
will then constitute our agreement on this subject.
Sincerely,
REPUBLIC BANCORP INC.
By /s/ Jerry D. Campbell
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Jerry D. Campbell
Its Chairman of the Board
Agreed to this 19th day of October, 2000
/s/ Dana M. Cluckey
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Dana M. Cluckey
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EXHIBIT A
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AGREEMENT TO RELEASE ALL CLAIMS
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1. In consideration for a severance payment and other benefits under
the Management Retention Agreement dated October 19, 2000, and to which I would
not otherwise be entitled, and for other good, valuable and separate
consideration, I, Dana M. Cluckey, individually, on behalf of myself and on
behalf of my respective heirs, legal representatives and assigns, do hereby
forever and fully release and discharge Republic Bancorp Inc. (Republic), its
predecessors, subsidiaries, successors, affiliates, distributors, dealers,
directors, officers, agents and employees (Released Parties) from all actions,
causes of action, claims, demands, damages (including compensatory, exemplary,
statutory and punitive damages), attorneys' fees, costs, debts, sums of money,
bills, covenants, contracts, liens, controversies, agreements, promises and
executions of any kind, in law, equity or otherwise, which I, individually or in
any representative capacity have or have ever had (as an employee (including
officer), participant in any pension or welfare plan, or shareholder) against
the Released Parties because of or arising out of any employment-related or
shareholder-related matter and/or event occurring on or before the date I sign
this Agreement to Release All Claims (Release). This Release includes
specifically, but not by way of limitation, any and all claims of
discrimination, wrongful discharge, breach of contract, fraud, promissory
estoppel, misrepresentation, retaliation, all claims under or in connection with
the Age Discrimination in Employment Act (ADEA), the Older Workers Benefit
Protection Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act
of 1991, the Employee Retirement Income Security Act of 1974, the Michigan
Elliott-Larsen Civil Rights Act, the Michigan Person's With Disabilities Civil
Rights Act, the Americans with Disabilities Act, any other Michigan and federal
statutes and the common law of the State of Michigan and the United States,
actions based on tort, public policy, defamation, or injuries incurred on the
job or incurred as a result of loss of employment, and any and all claims and
demands of every conceivable kind based upon or in connection with or involving
Employee's employment and the termination of such employment.
Nothing in this Waiver and General Release shall constitute a waiver of
any claim or right of Employee that may arise from events occurring after the
date the Waiver and General Release is executed by Employee, or of the right to
file a charge with or participate in an investigation conducted by the Equal
Employment Opportunity Commission.
This Agreement is not intended to release --
o any accrued claims for compensation or for welfare plan benefits
and/or vested pension benefits that have accrued but remain unpaid as of the
date hereof,
o any claim under the Management Retention Agreement dated October 19,
2000,
o any claim to indemnification arising under Republic's articles of
incorporation or bylaws or under any express agreement to which Republic and I
are parties, or
o any direct claim in a securities law or corporate law cause of action
against any one or more Released Parties, based on acts or omissions taking
place or first discovered subsequent to the date of this Release, or, if
initiated before the date of this Release, in which I am a passive party, not
involved in any way in the production of documents, evidence, or ideas used in
the development of
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that claim, provided my own acts or omissions as an employee, officer, director
or agent of any Released Party are not in issue.
2. In further consideration of the severance payment, other benefits,
and other good, valuable and separate consideration, I promise that I will not
begin any legal, equitable or administrative proceeding against any or all of
the Released Parties for any claim of the kind described in paragraph 1 arising
on or before the date I sign this Release, and that this Release will serve as a
defense to and a basis for an injunction against any legal, equitable or
administrative proceeding I or my heirs, legal representatives or assigns begin
against the Released Parties for any such claim arising on or before the date I
sign this Release.
3. In further consideration of the severance payment, other benefits,
and other good, valuable and separate consideration, I promise and agree to
waive reinstatement to any position with any of the Released Parties and further
promise and agree not to apply for a position in the future with any Released
Party that was previously my employer.
4. In further consideration of the severance payment, other benefits,
and other good, valuable and separate consideration, I promise and agree that
neither I nor anyone acting on my behalf will disclose the terms of this
Release. I understand that such nondisclosure is a material consideration for
the Released Parties having entered into this Release.
5. This Release, and all of its terms and provisions, shall be
construed in accordance with the laws of Michigan. If any provision of this
Release shall for any reason be held invalid or unenforceable, such invalidity
or unenforceability shall not affect any other provision in this Release, and
this Release shall be construed as though the invalid or unenforceable provision
was never included.
6. I acknowledge that I have been advised to consult with an attorney
before signing this Release.
7. I acknowledge that my employer has given me a period of 21 days
within which to consider signing this Release.
8. I understand that for seven days after I sign this Release I may
revoke it, and that this Release shall not become effective or enforceable until
the seven day period has expired.
9. I HAVE CAREFULLY READ THIS RELEASE, I HAVE HAD THE OPPORTUNITY TO
DISCUSS ITS PROVISIONS WITH AN ATTORNEY, I FULLY UNDERSTAND THIS RELEASE, AND I
FREELY AND VOLUNTARILY SIGN IT.
10. I have signed this Release on ____________, ____.
THIS IS A RELEASE READ BEFORE SIGNING
In the presence of:
[specimen]
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