Exhibit 10(m)
INDEMNITY AGREEMENT
This Indemnity Agreement (the "Agreement") is made as of the ________
day of __________, 200__, by and between Republic Bancorp Inc., a Michigan
corporation (the "Corporation"), and __________________________ (the
"Indemnitee").
WITNESSETH:
WHEREAS, it is essential to the Corporation to retain and attract as
directors and officers the most capable persons available; and
WHEREAS, the substantial increase in corporate litigation subjects
directors and officers to expensive litigation risks at the same time that the
availability of and coverage provided by directors' and officers' liability
insurance has become uncertain; and
WHEREAS, it is now and has been the express policy of the Corporation
to indemnify its directors and officers so as to provide them with the maximum
possible protection permitted by law and to provide them with specific
contractual assurance that said indemnity will be available to them; and
WHEREAS, the Corporation does not regard the protection available to
Indemnitee as adequate in the present circumstances, and realizes that
Indemnitee may not be willing to serve as a director and officer without
adequate protection, and the Corporation desires Indemnitee to serve in such a
capacity; and
NOW, THEREFORE, in consideration of Indemnitee's continued service as a
Director/Officer, as well as for other good and valuable consideration (the
receipt and adequacy of which are hereby acknowledged), the parties agree as
follows:
1. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending or
completed action, suit, proceeding (including any and all
appellate proceedings), arbitration, mediation, alternative
dispute resolution mechanism, inquiry or investigation, in
each case whether brought by or in the right of the
Corporation or otherwise, whether of a civil, criminal,
administrative, appellate or investigative nature, and whether
of a formal or an informal nature, in which Indemnitee may be
involved as a party or otherwise by reason of the fact that
Indemnitee is or was a director, officer, manager, member,
employee, agent or fiduciary of the Corporation, or is or was
serving at the request of the Corporation as a director,
officer, manager, member, employee, agent or fiduciary of
another entity, regardless of whether or not Indemnitee is
serving in such capacity at the time any
liability or expense is incurred for which indemnification or
reimbursement is to be provided under this Agreement.
(b) The term "Expenses" shall include, but is not limited to, (i)
costs, expenses and obligations of any and all Proceedings,
(ii) travel, transcript and deposition costs, expenses and
obligations, (iii) reasonable attorneys fees, retainers,
expenses and disbursements, (iv) accounting, professional,
expert and witness fees, retainers, expenses and
disbursements, (v) all other costs, expenses and obligations
paid or incurred in connection with investigating,
prosecuting, appealing, defending, being a witness in or
participating in, or preparing to investigate, prosecute,
appeal, defend, be a witness in or participate in, any
Proceeding, and (vi) any costs, expenses and obligations of
establishing a right to indemnification under this Agreement.
(c) The term "Director/Officer" shall include (i) Indemnitee's
service at the request of the Corporation as a director,
manager, officer, partner, trustee, employee, fiduciary or
agent of another entity, and (ii) Indemnitee's service as a
director, officer, employee, fiduciary and/or agent of the
Corporation.
(d) The terms "Corporation" and "corporation" include all
constituent entities absorbed in a consolidation or merger and
the resulting or surviving entity, so that if Indemnitee is or
was a director, manager, officer, partner, trustee, employee
or agent of the constituent entity or is or was serving at the
request of the constituent entity as a director, manager,
officer, partner, trustee, employee, or agent of another
entity, shall stand in the same position under the provisions
hereof with respect to the resulting or surviving entity as
Indemnitee would if Indemnitee had served the resulting or
surviving entity in the same capacity.
(e) The term "entity" includes any foreign or domestic
corporation, limited liability company, partnership, joint
venture, trust, or other enterprise (including employee
benefit plans), whether for profit or not.
(f) The phrase "serving at the request of the Corporation" shall
include any service as a director, officer, employee, or agent
of the Corporation which imposes duties on, or involves
services by, the director, officer, employee, or agent with
respect to an employee benefit plan, its participants, or its
beneficiaries.
(g) The phrase "decided in a Proceeding" shall mean a decision by
a court, arbitrator(s), hearing officer or other judicial
agent having the requisite legal authority to make such a
decision which decision has become final and from which no
appeal or other review proceeding is permissible.
2. Agreement to Serve. Indemnitee shall continue to serve in the positions
set forth on the signature page hereto so long as Indemnitee is duly
elected and qualified to serve or until Indemnitee resigns or is
removed from such positions.
3. Indemnification of Director/Officer.
(a) To the fullest extent permitted by law, the Corporation shall
indemnify and hold harmless Indemnitee against all
liabilities, losses, judgments, fines, penalties, ERISA excise
taxes, and, to the extent actually and reasonably incurred or
suffered by any Indemnitee, any amounts paid or to be paid in
settlement, that are incurred or suffered by Indemnitee in
connection with any Proceeding ("Judgment and Settlement
Amounts").
(b) To the fullest extent permitted by law, the Corporation shall
indemnify and hold harmless Indemnitee against all Expenses.
(c) If the indemnity provided for in this Section 3 with respect
to Judgment and Settlement Amounts is for any reason held to
be unavailable to Indemnitee, then, in order to provide for
just and equitable contribution, the Corporation shall
contribute to such Judgment and Settlement Amounts; provided,
however, that if it is decided in a Proceeding that Indemnitee
engaged in intentional misconduct for the primary purposes of
significant personal financial benefit through actions
materially adverse to the best interest of the Corporation and
its shareholders, then Indemnitee shall not be entitled to
such contribution. In determining the amount of contribution
to which Indemnitee is entitled, there shall be considered (i)
the relative benefits received by each party, (ii) the
parties' relative knowledge and access to information
concerning the matter with respect to which the claim was
asserted, (iii) the opportunity to correct and prevent any
improper action, and (iv) such other equitable considerations
as are appropriate in the circumstances. Notwithstanding the
foregoing, Indemnitee shall not be required to contribute more
than the total amount of such Judgment and Settlement Amounts,
multiplied by a fraction, the numerator of which is the amount
of compensation received by Indemnitee for Indemnitee's
service to the Corporation or such other entity as to which
the damages arose during the month or months in which the
alleged wrongful act or omission occurred, and the denominator
of which is the total amount of all damages awarded or paid in
or on account of the proceeding in which such damages arose by
or with respect to all parties thereto.
4. Partial Indemnity. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Corporation for some or a
portion of the Expenses and/or for some or a portion of the Judgment
and Settlement Amounts, but not, however, for all of the total amount
thereof, the Corporation shall nevertheless
indemnify Indemnitee for the portion thereof to which Indemnitee is
entitled. Moreover, notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the
merits or otherwise in defense of any claim, issue or matter in any
Proceeding (including, without limitation, dismissal without prejudice
and dismissal without payment by Indemnitee), then Indemnitee shall be
indemnified against all Expenses and all Judgement and Settlement
Amounts incurred or suffered in connection therewith. For purposes of
this Agreement, the payment of money in connection with any settlement
or dismissal of any Proceeding (whether by Indemnitee or on behalf of
Indemnitee), in and of itself, shall neither render nor be deemed to
render Indemnitee "unsuccessful" on the merits or otherwise.
5. Burden of Proof. In connection with any determination as to whether
Indemnitee is entitled to be indemnified hereunder, the burden of proof
shall be on the Corporation (or the person or entity challenging such
indemnification) to establish by clear and convincing evidence that
Indemnitee is not so entitled.
6. Presumptions. For all purposes of this Agreement: Indemnitee shall be
conclusively presumed to be entitled to indemnification under this
Agreement unless it is decided in a Proceeding that Indemnitee is not
entitled to such indemnification. The termination of any Proceeding, by
judgment, order, settlement (whether with or without court approval) or
conviction, or upon a plea of nolo contendere, or its equivalent, shall
not create a presumption that Indemnitee did not meet any particular
standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law. If
Indemnitee shall have acted in good faith and in a manner Indemnitee
reasonably believed to be in the interest of the holders of the equity
interests in an entity or in the best interest of the participants and
beneficiaries of an employee benefit plan, then Indemnitee shall be
considered to have acted in a manner not opposed to the best interests
of the Corporation or its shareholders.
7. Period of Limitations. No legal action shall be brought and no cause of
action shall be asserted by or in the right of the Corporation against
Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal
representatives after the expiration of two (2) years from the date of
accrual of such cause of action, and any claim or cause of action of
the Corporation shall be extinguished and deemed released unless
asserted by the timely filing of a legal action within such two-year
period; provided, however, that if any shorter period of limitation is
otherwise applicable to any such cause of action such shorter period
shall govern.
8. Limitations on Indemnity. Corporation shall not be obligated under this
Agreement to make any indemnification to the Indemnitee:
(a) to the extent that it is decided in a Proceeding that such
indemnification is prohibited by applicable law; or
(b) for which and to the extent payment is actually and
unqualifiedly made to the Indemnitee under a valid and
collectible insurance policy purchased or maintained by the
Corporation for the benefit of Indemnitee or for the benefit
of Indemnitee and other directors and/or officers of the
Corporation, except in respect of any such insurance.
9. Advance Payment. Expenses incurred by Indemnitee in connection with any
Proceeding shall be paid promptly by the Corporation as incurred and in
advance of the final disposition of such Proceeding. To the extent
required under applicable law, Indemnitee hereby agrees and undertakes
to repay any amounts advanced pursuant to this Agreement with respect
to which it is decided in a Proceeding that Indemnitee is not entitled
to be indemnified by the Corporation pursuant to this Agreement.
10. Indemnification Procedure.
(a) Promptly after receipt by Indemnitee of notice of the
commencement of any Proceeding, Indemnitee shall, if a claim
in respect thereof is to be made against the Corporation under
this Agreement, notify the Corporation of the commencement
thereof in writing unless the Corporation shall have otherwise
received notice of such Proceeding. The omission to so notify
the Corporation will not relieve it from any liability which
it may have to Indemnitee except to the extent that the
Corporation is materially damaged by such omission.
(b) If a claim for indemnification or advances under this
Agreement is not paid by the Corporation within thirty (30)
days of receipt of written notice, the rights provided by this
Agreement shall be enforceable by Indemnitee in any court of
competent jurisdiction or Indemnitee may, at Indemnitee's sole
option, seek an award in arbitration to be conducted by a
single arbitrator pursuant to the rules of the American
Arbitration Association, which award shall be binding and
non-appealable upon the Corporation and enforceable in any
court of competent jurisdiction.
(c) The Expenses of Indemnitee incurred in connection with any
Proceeding concerning Indemnitee's right to indemnification or
advances in whole or in part pursuant to this Agreement shall
also be indemnified by the Corporation unless it is decided in
a Proceeding that Indemnitee had no right to indemnification
or advances pursuant to this Agreement.
(d) With respect to any Proceeding for which indemnification is
requested, the Corporation will be entitled to participate
therein at its own expense and, except as otherwise provided
below, to the extent that it may wish, the Corporation may
assume the defense thereof, with counsel satisfactory to
Indemnitee. After notice from the Corporation to Indemnitee of
its election to assume the defense of a Proceeding, the
Corporation will not be liable to Indemnitee for any
attorneys' fees subsequently incurred by Indemnitee in
connection with the defense thereof, other than as provided
below. The Corporation shall not settle any Proceeding in any
manner which would impose any penalty or limitation on
Indemnitee without Indemnitee's prior written consent.
Indemnitee shall have the right to employ Indemnitee's own
counsel in any Proceeding, but the fees of such counsel
incurred after notice from the Corporation of its assumption
of the defense of the Proceeding shall be at the expense of
Indemnitee, unless (i) the employment of counsel by Indemnitee
has been authorized by the Corporation, or (ii) Indemnitee
shall have reasonably concluded that there may be a conflict
of interest between the Corporation and Indemnitee in the
conduct of the defense of a Proceeding, or (iii) the
Corporation shall not in fact have employed counsel to assume
the defense of a Proceeding, or (iv) counsel employed by the
Corporation shall not have been approved by Indemnitee, in
each of which cases the Expenses of Indemnitee's counsel shall
be advanced by the Corporation. The Corporation shall not be
entitled to assume the defense of any Proceeding brought by or
on behalf of the Corporation or as to which Indemnitee has
concluded that there may be a conflict of interest between the
Corporation and Indemnitee.
11. Enforcement. If a claim for Expenses under this Agreement is not paid
by the Corporation, or on its behalf, within thirty days after a
written claim has been received by the Corporation, Indemnitee may at
any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and if successful in whole or in part, the
Indemnitee shall be entitled to be paid also the Expenses of
prosecuting such claim.
12. Subrogation. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of
the rights of recovery of Indemnitee, who shall execute all papers
required and shall do everything that may be necessary to secure such
rights, including the execution of such documents necessary to enable
the Corporation effectively to bring suit to enforce such rights.
13. Notice. Notice to the Corporation shall be given at its principal
office and shall be directed to the Corporate Secretary (or such other
addresses as the Corporation shall designate in writing to the
Indemnitee); notice shall be deemed received if sent by prepaid mail
properly addressed, the date of such notice being the date
post-marked. In addition, the Indemnitee shall give the Corporation
such information and cooperation as it may reasonably require.
14. Saving Clause. If this Agreement or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, the
Corporation shall nevertheless indemnify Indemnitee to the full extent
permitted by any applicable portion of this Agreement that shall not
have been invalidated or by any other applicable law.
15. Indemnification And Contribution Hereunder Not Exclusive. The indemnity
and contribution provided for herein shall not be deemed to be
exclusive, but shall be cumulative and in addition to any and all other
rights or remedies which Indemnitee may otherwise have, at law or in
equity, or under any provision of the Articles of Incorporation or
Bylaws of the Corporation or under Michigan law. Nothing herein shall
be deemed to diminish or otherwise restrict any or all of such other
rights or remedies of Indemnitee.
16. No Duplication of Payments. The Corporation shall not be liable under
this Agreement to make any payment in connection with any Expenses or
any Judgment and Settlement Amounts to the extent Indemnitee has
otherwise actually received payment from a third party of the Expenses
or Judgment and Settlement Amounts otherwise indemnifiable hereunder.
17. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Michigan
applicable to contracts made and to be performed in such state without
giving effect to the principles of conflicts of laws.
18. Consent to Jurisdiction. The Corporation and the Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of
Michigan for all purposes in connection with any action or proceeding
which arises out of or relates to this Agreement and agree that nay
action instituted under this Agreement shall be brought only in the
state courts of the State of Michigan.
19. Counterparts. This Agreement may be executed in two or more
counterparts, and by each party on separate counterparts, each of which
counterparts shall be deemed an original, but all of which counterparts
taken together shall be one and the same document.
20. Successors and Assigns. This Agreement will be binding upon and inure
to the benefit of the parties and their respective heirs, legal
representatives and assigns. The Corporation will require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of the
Corporation to assume all of the Corporation's obligations
under this Agreement. Such assumption will not release the Corporation
from its obligations under this Agreement.
21. Coverage of Indemnification.
(a) The indemnification under this Agreement shall cover
Indemnitee's service as a Director/Officer and all of
Indemnitee's acts in such capacity, whether prior to or on or
after the date of this Agreement, and regardless of whether
Indemnitee shall have ceased to serve as a Director/Officer
and shall inure to the benefit of the successors, assigns,
heirs and personal representatives of Indemnitee.
(b) If Indemnitee is required to testify (in court proceedings,
depositions, informal interviews or otherwise), consult with
counsel, furnish documents or take any other reasonable action
in connection with any Proceeding, then, to the fullest extent
permitted under applicable law, the Corporation will pay
Indemnitee a fee for Indemnitee's efforts at a rate equal to
the amount payable to Indemnitee for attending Board and Board
committee meetings; plus reimbursement for all reasonable
expenses incurred by Indemnitee in connection therewith.
22. Insurance.
(a) The Corporation may, but is not obligated to, purchase and
maintain insurance insuring Indemnitee against any liability
arising out of Indemnitee's status as a director of the
Corporation, regardless of whether the Corporation has the
power to indemnify Indemnitee against such liability under
applicable law.
(b) The parties will cooperate to obtain advances of Expenses and
Judement and Settlement Amounts, indemnification payments and
consents from insurance carriers in any Indemnified Matter to
the full extent of applicable insurance. The existence of
insurance coverage will not diminish or limit the
Corporation's obligation to make indemnification payments or
advances to Indemnitee hereunder. Amounts paid directly to
Indemnitee with respect to any Expenses and Judgement and
Settlement Amounts by Corporation's insurance carriers will be
credited to the amounts payable by Corporation to Indemnitee
under this Agreement.
23. Amendments. Neither the Corporation's Articles of Incorporation nor its
Bylaws will be changed to increase liability of directors or to limit
Indemnitee's indemnification. Any repeal or modification of
Corporation's Articles of Incorporation or Bylaws or any repeal or
modification of the relevant provisions of any applicable law will not
in any way diminish any of Indemnitee's rights or the
Corporation's obligations under this Agreement. This Agreement cannot
be amended except with the written consent of the Corporation and
Indemnitee.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
INDEMNITEE CORPORATION
REPUBLIC BANCORP INC.
_____________________________ By: _____________________________
Name:
Its: Duly authorized agent
Indemnitee's Positions:
_____________________________
_____________________________
_____________________________