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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
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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.
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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
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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 connec
