EXHIBIT 4.9
REPUBLIC BANCORP INC.
SECOND AMENDED AND RESTATED DIRECTORS COMPENSATION PLAN
SECTION 1
PURPOSE
1.1 Purpose of the Plan. The Republic Bancorp Inc. Directors Compensation
Plan was adopted by the Board of Directors (the "Board") of Republic Bancorp
Inc. (the "Company") on October 15, 1992 and approved by the stockholders of the
Company on April 28, 1993 (the "Original Plan"). The Republic Bancorp Inc. First
Amended and Restated Directors Compensation Plan amended and restated the
Original Plan (the "First Amended and Restated Plan"). The First Amended and
Restated Plan was adopted by the Board on February 20, 2003 and approved by the
stockholders of the Company on April 23, 2003. The Second Amended and Restated
Republic Bancorp Inc. Directors Compensation Plan amends and restates the
Original Plan as amended and restated by the First Amended and Restated Plan.
(As used herein, "Plan" means the Original Plan, as amended and restated by this
First Amended and Restated Directors Compensation Plan, as further amended and
restated by this Second Amended and Restated Plan.) The Plan is intended to
increase the proprietary interest of non-employee members of the Board of the
Company and non-employee members of the Board of Directors and any advisory or
community board of each of the Company's subsidiaries (the "Affiliates") by
providing further opportunity for ownership of the Company's common stock, $5.00
par value ("Stock"), and to increase their incentive to contribute to the
success of the Company's business.
1.2 Status of the Plan. The Original Plan was intended to comply with Rule
16b-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as such Rule may be amended from time to time ("Rule 16b-3") and shall be
construed to so comply. In particular, the provisions of Sections 4.1 and 5.1 of
the Original Plan were intended to comply with the provisions of Section
(c)(2)(ii) of Rule 16b-3, and each such Section shall be construed to so comply.
The Plan is intended to comply with Rule 16b-3.
SECTION 2
ADMINISTRATION
2.1 Administration. The Plan shall be administered by the Corporate
Governance and Nominating Committee (the "Committee") of the Board.
2.2. Authority of the Committee. The Committee may make such rules and
establish such procedures for the administration of the Plan as it deems
appropriate to carry out the purpose of the Plan. The interpretation and
application of the Plan or of any rule or procedure, and any other matter
relating to or necessary to the administration of the Plan, shall be determined
by the Committee, and any such determination shall be final and binding on all
persons.
Exhibit 10
SECTION 3
SHARES OF STOCK
3.1 Shares Reserved. Shares of Stock that may be issued under the Plan may
either be authorized and unissued shares or issued shares that have been
reacquired by the Company, provided that the total number of shares of Stock and
Warrants that may be issued under the Plan shall not exceed 600,000 shares.
3.2 Capital Adjustments. In the event of a change in the number or class of
shares of Stock as a result of reorganization, recapitalization, stock split,
stock dividend, combination of shares, merger, consolidation or a similar
corporate transaction, the number or class of shares available under the Plan,
and the number or class of shares of Stock and Warrants to be delivered
hereunder shall be proportionately adjusted to reflect any such change.
SECTION 4
DELIVERY OF SHARES OF STOCK
4.1 Stock in Lieu of Cash for Meetings Attended. Commencing on November 1,
1992, each non-employee member of the Board (a "Holding Company Director") and
each non-employee member of an Affiliate Board, including any non-employee
member of an advisory board or a community board of an Affiliate ("Affiliate
Director") shall receive shares of Stock in lieu of cash for each meeting of the
Board or an Affiliate Board or meeting of a committee of the Board or a
committee of an Affiliate Board attended. The number of shares of Stock to be
delivered depends upon the number of meetings attended and the director meeting
fees and compensation determined by the Board from time to time.
Such shares (the "Meeting Fee Shares") shall be payable to each Holding
Company Director and each Affiliate Director at the meetings of the Board and
the Affiliate Board, respectively, held in April and October of each year (the
"Meeting Fee Stock Payment Dates"). The shares shall be delivered as soon as
practicable following each Meeting Fee Stock Payment Date. The number of Meeting
Fee Shares to be delivered in April 1993 shall depend upon the number of
meetings attended during the preceding five-month period, and the number of
shares delivered thereafter with respect to any Meeting fee Stock Payment Date
shall depend on the number of meetings attended during the preceding six-month
period.
The Meeting Fee Shares to be delivered on a Meeting Fee Stock Payment Date
shall be valued as of the September 15 or March 15 immediately preceding such
Meeting Fee Stock Payment Date. The value of such shares shall be the average
closing sale price per share of Stock as reported on the Nasdaq National Market
System from September 1 through September 14 and March 1 through March 14,
respectively, preceding the
Exhibit 10
applicable Meeting Fee Stock Payment Date. If any of the foregoing days falls on
a day that is not a business day, such determination shall be made as of the
immediately preceding business day. The value of fractional shares shall be paid
to each Holding Company Director and each Affiliate Director in cash.
4.2 Death. In the event a director should die before the director's Meeting
Fee Shares have been delivered on a Meeting Fee Stock Payment Date, any shares
earned by attendance at meetings prior to death shall be delivered to the
beneficiary or beneficiaries designated in writing by the director, or if no
designation has been made, to the estate of the director, as soon as practicable
after the next Meeting Fee Stock Payment Date.
4.3 Resignation or Removal. In the event a director resigns or is removed
before the director's Meeting Fee Shares have been delivered on a Meeting Fee
Stock Payment Date, any shares earned by attendance at meetings prior to the
date of resignation or removal shall be delivered to the director as soon as
practicable after the next Meeting Fee Stock Payment Date.
4.4 Stock in Lieu of Cash for Annual Retainer Fee. Commencing with the
annual organizational meeting of the Board to be held on April 23, 2003
following the Company's 2003 annual meeting of stockholders, and at each annual
organizational meeting of the Board held thereafter, each Holding Company
Director shall be entitled to receive an annual retainer fee of $10,000 (the
"Annual Retainer"). The amount of the Annual Retainer shall be subject to
adjustment pursuant to the terms hereof (including Section 7.1 hereof), and
shall be paid in shares of Stock pursuant to this Plan (the "Annual Retainer
Shares").
The Annual Retainer Shares shall be payable to each Holding Company
Director at the annual organizational meeting of the Board (the "Annual Retainer
Stock Payment Date"). The Annual Retainer Shares shall be delivered as soon as
practicable following the Annual Retainer Stock Payment Date. The number of
Annual Retainer Shares to be delivered on an Annual Retainer Stock Payment Date
shall be determined by dividing the amount of the Annual Retainer then in effect
by the closing stock price per share of Stock as reported on the Nasdaq National
Market System on the Annual Retainer Stock Payment Date. The value of any
fractional shares shall be paid to each Holding Company Director in cash.
4.5 Retirement Award. With respect to (i) each Holding Company Director who
ceases to serve as a Holding Company Director at any time during the period
beginning April 1, 2003 and ending on the mandatory retirement age applicable to
such Holding Company Director, and (ii) each Affiliate Director who ceases to
serve as an Affiliate Director at any time during the period beginning April 1,
2003 and ending on the mandatory retirement age applicable to such Affiliate
Director, if the Board or the Committee, in each case in its discretion,
determines that the cessation of service as a Holding Company Director or
Affiliate Director by such Holding Company Director or Affiliate Director
constituted retirement, then such retiring Holding Company Director or Affiliate
Director (a "Retired Director") shall be entitled to receive a retirement award
of
Exhibit 10
in an amount not to exceed $25,000 (the "Retirement Award"). The maximum amount
of the Retirement Award shall be subject to adjustment pursuant to the terms
hereof (including Section 7.1 hereof). Subject to such maximum amount
limitation, the actual amount of any Retirement Award paid to a Retired Director
shall be determined by the Board or the Committee, in each case in its
discretion. Each Retirement Award, if any, shall be paid either in cash or in
shares of Stock pursuant to this Plan (the "Retirement Shares"); with the form
of payment of such Retirement Award being determined by the Board or the
Committee, in each case in its discretion.
The Retirement Award shall be payable to such Retired Director not later
then thirty (30) days after the date that the Board or the Committee has
determined that the cessation of service as a Holding Company Director or
Affiliate Director by such Retired Director constituted retirement (the
"Retirement Award Payment Date"). Any Retirement Shares shall be delivered as
soon as practicable following the Retirement Award Payment Date. The number of
Retirement Shares to be delivered on a Retirement Award Payment Date shall be
determined by dividing the amount of the Retirement Award then in effect by the
closing stock price per share of Stock as reported on the Nasdaq National Market
System on the Retirement Award Payment Date. The value of any fractional shares
shall be paid to such Retired Director in cash.
SECTION 5
DELIVERY OF WARRANTS
5.1 Annual Retainer Fee Prior to April 23, 2003. Commencing with the annual
organizational meeting of the Board held on April 28, 1993, and at each annual
organizational meeting thereafter until and including the annual organizational
meeting of the Board held on April 24, 2002, each Holding Company Director shall
receive a warrant to acquire shares of Stock each year at the annual
organizational meeting of the Board ("Warrant"). Such Warrant shall represent
the Holding Company Director's annual retainer fee. Initially, each Warrant
entitled the recipient to acquire 1,000 shares of Stock. Since then, the number
of Shares that may be acquired pursuant to a Warrant has been adjusted pursuant
to the terms hereof (including Section 7.1 hereof).
5.2 Warrant Terms. Each Warrant granted to a Holding Company Director and
the issuance of Stock thereunder shall be subject to the following terms.
a. Warrant Agreement. Each Warrant shall be evidenced by a warrant
agreement (the "Agreement") duly executed on behalf of the Company and by the
Holding Company Director to whom such Warrant is granted. Each Agreement shall
comply with and shall be subject to the terms and conditions of the Plan and
shall be conclusively evidenced by the warrantholder's signature thereon that
it is the intent of the warrantholder to continue to serve as a Holding Company
Director of the Company for the remainder of the year in which the Warrant was
granted. Any Agreement may contain such other terms, provisions and conditions
not inconsistent with the Plan as may be determined by the Committee. No
Warrant shall be granted within the meaning of the Plan and no
Exhibit 10
purported grant of any Warrant shall be effective, until such an Agreement
shall have been duly executed on behalf of the Company and the Holding Company
Director to whom the Warrant is to be granted.
b. Warrant Exercise Price. The Warrant exercise price for a Warrant
granted under the Plan shall not be less than the fair market value of the
Stock covered by the Warrant at the time the Warrant is granted. For purposes
of this Plan, "fair market value" shall mean the last sale price per share of
the Stock on the date of the annual meeting of the Board.
c. Time and Manner of Exercise of Warrant. Warrants may be exercised in
full at one time upon grant or in part from time to time thereafter. Any
Warrant may be exercised by giving written notice, signed by the person
exercising the Warrant, to the Company stating the number of shares of Stock
with respect to which the Warrant is being exercised, accompanied by payment in
full in cash for such shares.
d. Term of Warrant. Each Warrant shall expire not more than ten (10) years
from the date of its grant but shall be subject to earlier termination as
follows:
(i) In the event of the death of a warrantholder, any Warrant granted to
such warrantholder may be exercised within one (1) year after the date of
death of such warrantholder or prior to the date on which the Warrant expires
by its terms, whichever is earlier, by the estate of the warrantholder, or by
any beneficiary or beneficiaries designated in writing by the warrantholder,
or if no such designation has been made, by the person or persons to whom the
warrantholder's rights have passed by will or the laws of descent and
distribution.
(ii) In the event that a warrantholder ceases to be a Holding Company
Director, any Warrant granted may be exercised by such warrantholder within
one (1) year after the date such warrantholder ceases to be a Holding Company
Director or prior to the date on which the Warrant expires by its terms,
whichever is earlier.
e. Transferability. The right of any warrantholder to exercise a Warrant
shall not be assignable or transferable by such warrantholder otherwise than by
will or the laws of descent and distribution, and any such Warrant shall be
exercisable during the lifetime of such warrantholder only by him or her.
f. Participant's or Successor's Rights as Stockholder. Neither the
recipient of a Warrant nor a successor(s) in interest shall have any rights as
a stockholder of the Company with respect to any shares subject to a Warrant
granted to such person until such person becomes a holder of record of such
shares.
Exhibit 10
g. Regulatory Approval and Compliance. The Company shall not be required
to issue any certificate or certificates for the Stock issuable upon the
exercise of a Warrant or record as a holder of record of such Stock the name of
the individual exercising a Warrant, without obtaining to the complete
satisfaction of the Committee the approval of all regulatory bodies deemed
necessary by the Committee, and without complying, to the Committee's complete
satisfaction, with all rules and regulations, under federal, state, or local
law deemed applicable by the Committee.
SECTION 6
TERM OF PLAN
The Original Plan was adopted by the Board on October 15, 1992 and was
approved by the stockholders of the Company on April 28, 1993. Under the terms
of the Original Plan, and because the Original Plan was approved by
stockholders, any Stock earned pursuant to Section 4.1 prior to April 28, 1993
was deemed to be earned as of the date such meeting was attended.
The First Amended and Restated Plan was adopted by the Board on February
20, 2003 and was approved by the stockholders of the Company on April 23, 2003.
Under the terms of the First Amended and Restated Plan, and because the First
Amended and Restated Plan was approved by stockholders, any Stock earned
pursuant to Section 4.1 prior to April 23, 2003 was deemed to be earned as of
the date such meeting was attended.
This Second Amended and Restated Directors Compensation Plan was adopted by
the Board on February 19, 2004 and is subject to approval by the stockholders of
the Company on April 28, 2004; provided, however, that if the Plan is approved
by stockholders, then any Stock earned prior to such stockholder approval shall
be deemed to be earned as of the date such meeting was attended. In no event
shall any delivery of shares of Stock pursuant to Section 4.4 be made to any
Holding Company Director or other person under this Second Amended and Restated
Directors Compensation Plan until such time as stockholder approval of this
Second Amended and Restated Directors Compensation Plan is obtained.
Notwithstanding anything to the contrary express or implied in this Second
Amended and Restated Directors Compensation Plan, all Meeting Fee Shares and all
Warrants previously issued under the Original Plan and the First Amended and
Restated Plan shall be deemed to have been duly and validly issued pursuant to
the Plan.
The Plan shall continue in effect for a period of ten years ending May 1,
2014 (the "Termination Date"); provided, however, that the term of the Plan may
be extended for a period of ten years beyond the Termination Date if stockholder
approval of such extension is obtained prior to the Termination Date.
Exhibit 10
SECTION 7
AMENDMENT; TERMINATION
7.1 The Board may at any time and from time to time alter, amend, suspend
or terminate the Plan in whole or in part; provided, however, that the
provisions of Sections 4.1, 4.4, 4.5 and 5.1 shall not be amended more than once
every six months, other than to comport with changes in the Internal Revenue
Code, the Employee Retirement Income Security Act, or the rules thereunder.
Further, the number of Shares that may be acquired pursuant to any Warrant, the
amount of the Annual Retainer Fee, the amount of any Retirement Award, the
amount of any meeting fees, and the amount of any other director compensation,
as well as the number and value of any Meeting Fee Shares, the number and value
of any Annual Retainer Shares, and the number and value of any Retirement
Shares, in each case shall be determined by the Board from time to time;
provided, however, that the same shall not be adjusted by the Board more than
once every six months.
7.2 If the Plan is terminated, then (i) Meeting Fee Shares shall be
distributed at such time and in such manner as the Committee shall determine,
but in no event later than they would have been distributed pursuant to the
Meeting Fee Stock Payment Date applicable thereto, (ii) Annual Retainer Shares
shall be distributed at such time and in such manner as the Committee shall
determine, but in no event later than they would have been distributed pursuant
to the Annual Retainer Stock Payment Date applicable thereto, and (iii)
Retirement Shares shall be distributed at such time and in such manner as the
Committee shall determine, but in no event later than they would have been
distributed pursuant to the Retirement Award Payment Date applicable thereto.
SECTION 8
MISCELLANEOUS
8.1 The right of a director to shares of Stock and/or Warrants under this
Plan shall be non-assignable and shall not be subject to any manner to the debts
or other obligations of the director or any other person.
8.2 No provision of this Plan shall be construed as conferring any right
upon any director to continuance as a member of the Board or an Affiliate Board.
8.3 This Plan and all rights hereunder shall be construed in accordance
with and governed by the laws of the State of Michigan.
8.4 Any Meeting Fee Shares, any Annual Retainer Shares, any Retirement
Shares, and any shares delivered pursuant to the exercise of a Warrant shall be
restricted unless and until registered by the Company under the Securities Act
of 1933, and shall bear an appropriate legend thereto.