Employment Agreement

Tarp Related Employment Agreement Waiver and Consent

Change in Control Agreement

 

Letter Agreement 1/23/2009 8-K

EX-10.48 2 k47335exv10w48.htm EX-10.48

EXHIBIT 10.48

[CITIZENS REPUBLIC BANCORP, INC. LETTERHEAD]

January 22, 2009

Cathleen H. Nash
[ADDRESS OMITTED]

Dear Cathy:

     I am pleased to confirm the terms of your new position as President and Chief Executive Officer of Citizens Republic Bancorp, Inc. (the “Company”), effective February 1, 2009 (the “Effective Date”).

     Position and Duties: You will serve as the President and Chief Executive Officer of the Company, with the authority, power, duties and responsibilities as are commensurate with the positions and customarily exercised by a person holding the positions. You will report directly to and be responsible to the Board of Directors of the Company (the “Board”). The Board also agrees to appoint or cause you to be appointed as (i) a member of the Board as a Class 3 Director, and (ii) a member of the Board of Directors and President and Chief Executive Officer of Citizens Bank, a wholly-owned subsidiary of the Company. Outside of the compensation described below, you will not receive additional compensation for your duties on the Board or with Citizens Bank.

     Annual Base Salary: Your annual base salary will be $600,000, payable in arrears in accordance with the Company’s payroll practices for the Leadership Group (but no less frequently than monthly). Your compensation (base salary as well as the annual and long-term incentives described below) will be reviewed annually by the Company’s Compensation and Human Resources Committee (the “Committee), with adjustments recommended to the full Board for approval.

     Annual Incentives: You will be eligible to participate in the Company’s Management Incentive Plan (the “MIP”) to the extent that annual MIP awards are granted. The Leadership Group will not be receiving 2009 annual MIP awards.

     Long-Term Incentives: You will be eligible for long-term incentive awards under the Citizens Banking Corporation Stock Compensation Plan (the “Stock Compensation Plan”). Your 2009 long-term incentive award will consist of 100,000 restricted stock units and $300,000 of deferred cash compensation if all of the performance targets are achieved. The specific terms of your 2009 long-term incentive award will be set by the Compensation Committee.

     Employee Benefits and Perquisites: You will be eligible for the same 401(k) employer match, paid time-off, life insurance, medical, dental and vision benefits, as well as such other welfare plan and fringe benefits as are provided to the other members of the Leadership Group.

     Severance: In the event of your termination by the Company without cause that is not in connection with a change in control, you will be entitled to two years of base salary continuation at the level of your base salary in effect at the time of your termination, plus outplacement services that are commensurate with outplacement services provided to other members of the

 

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Leadership Group. In the event your employment is terminated due to a change in control, your severance benefits will be provided in accordance with your existing change in control agreement dated February 26, 2008, as amended pursuant to the requirements of the Emergency Economic Stabilization Act (“TARP”).

     Upon an involuntary termination of employment, your incentive awards and equity grants will vest in accordance with the terms of the individual grant agreements or your change in control agreement, as applicable. Severance compensation in both the change in control and non-change in control contexts is subject to any applicable restrictions under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and TARP. In particular, if you are a “specified employee” (as defined under Code Section 409A) at the time of your employment termination, some or all of your compensation may be suspended for six months, at which time, the suspended payments will be aggregated and paid to you in a lump sum, with interest at the applicable Federal rate.

     Death or Disability: In the event that your employment is terminated in connection with death or disability, you are eligible for the same benefits as are provided to the other members of the Leadership Group.

     At-Will Employment: Your employment with the Company will continue on an “at-will” basis and is not subject to a designated term. You may terminate your employment at any time, and the Board, in its sole discretion, may terminate your employment at any time.

     Arbitration: Any and all disputes, controversies or claims arising out of or in connection with or relating to this letter (other than disputes or claims arising out of or relating to the confidentiality provisions and restrictive covenants described below) will be fully and finally resolved pursuant to binding arbitration conducted by the American Arbitration Association (the “AAA”) in the State of Michigan pursuant to the Voluntary Labor Arbitration Rules then in effect (or at any other place or under any other form of arbitration mutually acceptable to the parties involved). By accepting the terms of this letter, you knowingly agree to arbitrate with the Company in a proceeding with regard to all issues and disputes (except those excluded above) and to permit pre-hearing discovery in the time and manner provided by the Federal Rules of Civil Procedure then in effect. The mutual agreement to arbitrate will be specifically enforceable under the prevailing arbitration law. Notice of a demand for arbitration will be filed in writing with both the other party and the AAA. Any demand for arbitration will be made within a reasonable time after the claim, dispute, or other matter in question arose (or when the party asserting the claim reasonably should have been aware of the same), but in no event later than the applicable Michigan or Federal statute of limitations. The arbitrator will not have the power to add to, subtract from, or alter the terms of this letter and will render a written decision setting forth findings and conclusions only as to the claims or disputes at issue. Any award by the arbitrator will be final and conclusive upon the parties, and a judgment thereon may be entered in the highest court having jurisdiction for the forum.

     All reasonable expenses of the arbitration process will be borne by the Company. The Company will reimburse you for reasonable legal fees and expenses you incur within 10 days following the Company’s receipt of your invoice. However, within 10 days of the arbitrator’s decision, you will be required to reimburse the Company for any legal fees and expenses it previously reimbursed on your behalf if the arbitrator determines that your claim was frivolous or brought in bad faith. It is not intended that you waive the attorney client privilege with respect to the timing of invoice submissions. To comply with Code Section 409A, no

 

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reimbursements will be made by the Company later than the end of the calendar year following the calendar year in which your fees and expenses were incurred; provided that you will have submitted an invoice for such fees at least 10 days before the end of the calendar year following the calendar year in which the fees and expenses were incurred. The amount of any legal fees and expenses that the Company is obligated to pay on your behalf in any given calendar year will not affect the legal fees and expenses that the Company is obligated to pay on your behalf in any other calendar year, and your right to reimbursement from the Company will not be liquidated in exchange for any other benefit.

     Amendment: The terms of this letter may not be amended or modified except in writing by the parties hereto or their legal representatives. If benefits or payments under this letter must be reduced to comply with Code Section 409A or TARP, the Company will consult with you to modify the letter in the least restrictive manner necessary to comply with such restrictions.

     Taxes: The Company may withhold from any amounts payable to you in the course of your employment to comply with applicable Federal, State, local or foreign taxes.

     Confidentiality/Restrictive Covenants: As consideration for the compensation provided herein, you agree to comply with and be bound by the following confidentiality provisions and restrictive covenants:

     Upon your termination of employment for any reason, you will promptly return to the Company any property belonging to the Company, and you also will return all writings, files, records, correspondence, notebooks, notes and other documents (including any copies thereof) containing confidential information or relating to the business or proposed business of the Company or it affiliated entities or containing any trade secrets relating to the Company or its affiliated entities, except personal diaries, calendars, rolodexes or personal notes or correspondence. For purposes of the preceding sentence, the term “trade secrets” means the definition then in effect under the Uniform Trade Secrets Act. Upon termination of employment you agree to represent in writing to the Company that you have complied with the foregoing provisions.

     You and the Company each agree that, following your termination of employment, neither you, nor the Company, including its executive officers and directors, will make any public statements that materially disparage the other party. Notwithstanding the foregoing, nothing will prohibit either party from making truthful statements when required by a government agency, order of a court or other governmental or regulatory body having jurisdiction, or to your own counsel if necessary.

     You agree that, during your employment with the Company and at all times thereafter, you will hold in a fiduciary capacity for the benefit of the Company all secret or confidential information, knowledge or data relating to the Company or any of its affiliated entities, and their respective businesses, which you have obtained during your employment with the Company or during any consultation with the Company after your termination of employment, and which is not public knowledge (other than by your acts or acts on your behalf in violation of this letter). Except in the good faith performance of your duties for the Company, you will not, without the prior written consent of the Company or as otherwise may be required by law or legal process, communicate or divulge any such information, knowledge or data to anyone other than the Company and those designated by the Company.

 

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     For the two-year period following your termination of employment with the Company, you will not solicit any individual who is, on the date of your employment termination, employed by the Company or its affiliated entities to terminate or refrain from renewing or extending such employment or to become employed by or become a consultant to any other individual or entity other than the Company or its affiliated entities, and you will not initiate discussion with any such employee for any such purpose or authorize or knowingly cooperate with the taking of any such actions by any other individual or entity on behalf of your employer.

     You agree that, while employed by the Company and during the two-year period thereafter, you will not engage in Competition (as defined below). You will be deemed to be engaging in “Competition” if you directly or indirectly, own, manage, operate, control or participate in the ownership, management, operation or control of or are connected as an officer, employee, partner, director, consultant or otherwise with, or have any financial interest in, any business engaged in the financial services business (a “Competing Business”) in any state in which the Company or its affiliated entities as of the date of your employment termination operates a commercial banking or other material financial services business that is a material part of such business and is in material competition with the business conducted by the Company or its affiliated entities at the time of your employment termination. You will not be deemed to be engaging in Competition under the circumstances described in the foregoing sentence if you (i) do not own or control the Competing Business, (ii) do not serve as a director or consultant to the Competing Business, and (iii) do not have any management or operational responsibility for the Competing Business in any state in which the Company or its affiliated entities operates a material business as of the date of your employment termination. Your ownership for personal investment purposes of less than 2% of the voting stock of any publicly held corporation will not constitute a violation of this paragraph.

     You acknowledge that the Company would be irreparably injured by a violation of these confidentiality provisions and restricted covenants and agree that the Company, in addition to any other remedies available to it for such breach or threatened breach, will be entitled to a preliminary injunction, temporary restraining order, or other equivalent relief, restraining you from any actual or threatened breach of the restricted covenants. If a bond is required to be posted for the Company to secure an injunction or other equitable remedy, the parties agree that the bond need not be more than a nominal sum. In no event will an asserted violation of the provisions of the confidentiality provisions and restricted covenants constitute a basis for deferring or withholding any amounts otherwise payable to you under this Agreement.

     Entire Agreement: This letter represents the entire terms of your at-will employment with the Company and expressly supersedes and cancels any prior oral or written agreements regarding the subject matter, except as otherwise specifically stated herein.

     Governing Law: The terms of this letter will be governed by, and construed in accordance with, the laws of the State of Michigan without regard to conflict of laws provisions of any State.

     Congratulations on your appointment. We look forward to working with you as Chief Executive Officer.

 

 

 

 

 

 

Sincerely,

 

 

 

 

 

 

 

 

/s/ Benjamin W. Laird  

 

 

Chairman of the Compensation and 

 

 

Human Resources Committee 

 

 

TERMS ACCEPTED:

/s/ Cathleen H. Nash

Cathleen H. Nash
Dated: January 22, 2009

 

 

EX-10.2 5 k47079exv10w2.htm EX-10.2

Exhibit 10.2

UST Sequence No. 116

FORM OF WAIVER

In consideration for the benefits I will receive as a result of my employer’s participation in the United States Department of the Treasury’s TARP Capital Purchase Program, I hereby voluntarily waive any claim against the United States or my employer for any changes to my compensation or benefits that are required to comply with the regulation issued by the Department of the Treasury as published in the Federal Register on October 20, 2008.

I acknowledge that this regulation may require modification of the compensation, bonus,
incentive and other benefit plans, arrangements, policies and agreements (including so-called “golden parachute” agreements) that I have with my employer or in which I participate as they relate to the period the United States holds any equity or debt securities of my employer acquired through the TARP Capital Purchase Program.

This waiver includes all claims I may have under the laws of the United States or any state related to the requirements imposed by the aforementioned regulation, including without limitation a claim for any compensation or other payments I would otherwise receive, any challenge to the process by which this regulation was adopted and any tort or constitutional claim about the effect of these regulations on my employment relationship.

 

 

 

 

 

Agreed to and acknowledged

 

 

as of this 12th day of December 2008

 

 

 

 

 

 

 

 

 

 

EX-10.3 6 k47079exv10w3.htm EX-10.3

Exhibit 10.3

FORM OF CONSENT

     I,                     , hereby do consent to the adoption of the amendments to the “Benefit Plans” as defined in and as described in the attached “Resolution and Amendment” adopted at the October 28, 2008 meeting of the Board of Directors, as and to the extent, and for the period, required by the provisions of Section 111 of the Emergency Economic Stabilization Act of 2008 (“EESA”) applicable to participants in the Capital Purchase Program under EESA and the regulation issued by the Department of the Treasury as published in the Federal Register on October 20, 2008.

 

 

 

 

 

Agreed to and acknowledged

 

 

as of the 12th day of December, 2008:

 

 

 

 

 

 

 

 

 

 

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Citizens Republic Bancorp, Inc.

Meeting of the Board of Directors
October 28, 2008

Action: Amend Benefit Plans to Comply with Emergency Economic Stabilization Act

     WHEREAS Citizens Republic Bancorp, Inc. (the “Company”) currently intends on entering into a Securities Purchase Agreement with the United States Department of Treasury (the “Agreement”) as part of the Capital Purchase Program under the Emergency Economic Stabilization Act of 2008 (“EESA”); and

     WHEREAS pursuant to Section 1.2(d)(iv) of the Agreement, the Company is required to amend its “Benefit Plans” with respect to its “Senior Executive Officers” (as such terms are defined in the Agreement) to the extent necessary to comply with Section 111 of EESA; and

     WHEREAS the applicable “Benefit Plans” are the plans in which any Senior Executive Officer participates, or is eligible to participate, and the agreements to which any Senior Executive Officer is a party, that either: (i) provide for incentive or bonus compensation based on the achievement of performance goals tied to or affected by the Company’s financial results (“Financial Performance Plans”) or (ii) provide for payments or benefits upon an “applicable severance from employment” within the meaning of EESA (“Involuntary Separation Pay Arrangements”);

     RESOLVED that each Financial Performance Plan and Involuntary Separation Pay Arrangement is hereby amended effective as of the date of entry into the Agreement as follows:

     1. Compliance With Section 111 of EESA. Each Financial Performance Plan and Involuntary Separation Pay Arrangement is hereby amended by adding the following provision as a final section to such arrangement:

Compliance With Section 111 of EESA. Solely to the extent, and for the period, required by the provisions of Section 111 of the Emergency Economic Stabilization Act of 2008 (“EESA”) applicable to participants in the Capital Purchase Program under EESA and the regulation issued by the Department of the Treasury as published in the Federal Register on October 20, 2008: (a) each “Senior Executive Officer” within the meaning of Section 111 of EESA and the regulation issued by the Department of the Treasury as published in the Federal Register on October 20, 2008 who participates in this plan or is a party to this agreement shall be ineligible to receive compensation hereunder to the extent that the Board of Directors or Compensation and Human Resources Committee of the Board of Directors of the Company determines this plan or agreement includes incentives for the Senior Executive Officer to take unnecessary and excessive risks that threaten the value of the financial institution; (b) each Senior Executive Officer who participates in this plan or is a party to this agreement shall be required to forfeit any bonus or incentive compensation paid to the Senior

 

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Executive Officer hereunder during the period that the Department of the Treasury holds a debt or equity position in the Company based on statements of earnings, gains, or other criteria that are later proven to be materially inaccurate; and (c) the Company shall be prohibited from making to each Senior Executive Officer who participates in this plan or is a party to this agreement, and each such Senior Executive Officer shall be ineligible to receive hereunder, any “golden parachute payment” in connection with the Senior Executive Officer’s “applicable severance from employment,” in each case, within the meaning of Section 111 of EESA and the regulation issued by the Department of the Treasury as published in the Federal Register on October 20, 2008.”

     2. Continuation of Affected Plans. Except as expressly or by necessary implication amended hereby, each Financial Performance Plan and Involuntary Separation Pay Arrangement shall continue in full force and effect.

 

 

 

EX-10.62 5 k49773exv10w62.htm EX-10.62

EXHIBIT 10.62

AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT

          This Amended and Restated Change in Control Agreement (“Agreement”) is made by and between Citizens Republic Bancorp, Inc., a Michigan corporation (“Corporation”), and _________________________ (“Executive”). The effective date of this Agreement shall be _________________.

          The Executive and the Corporation are parties to that certain Amended and Restated Change in Control Agreement, dated as of _____________________ (the “Prior Agreement”). The Corporation now desires to restate the Prior Agreement to reflect changes promulgated by the compensation and human resources committee of the board of directors of the Corporation designed to place structure around the overall change in control program of the Corporation and to provide consistency in terms of the level of benefits offered in accordance with the level of positions within the Corporation that are eligible to participate in the program.

          The Executive agrees to such changes and reduction in benefits including, but not limited to, any reduction in the Severance Payment as provided for in the Prior Agreement in consideration of, as the case may be (i) the agreement of the Corporation to increase Executive’s base salary, (ii) the granting of a short term or long term incentive award to Executive, or (iii) the continuance of Executive’s employment with the Corporation (or a subsidiary thereof) following the termination of Executive’s employment from his or her previous position with the Corporation.

          The Corporation anticipates the valuable services that the Executive will render on behalf of the Corporation and its subsidiary banks throughout this Agreement and is desirous of having some assurance that the Executive will continue as an employee and that, in the event of a possible Change in Control of the Corporation, the Executive will be able to perform the Executive’s duties without undue concern for the Executive’s personal financial well-being; and

     The Executive is willing to serve as an employee of the Corporation under such circumstances.

     Accordingly, the Corporation and the Executive agree as follows:

1. In order to protect the Executive against the possible consequences of a Change in Control of the Corporation, as defined in paragraph 2 of this Agreement, and thereby to induce the Executive to serve as an officer of the Corporation or a subsidiary bank the Corporation agrees that if (a) there is such a Change in Control of the Corporation and (b) the Executive experiences a “separation from service” from the Corporation or a subsidiary thereof within the meaning of Code Section 409A (a “Separation from Service”) under the circumstances described in paragraph 3 of this Agreement, then:

     A. (1) The Corporation shall pay the Executive a lump sum amount in cash equal to the sum of (a) _____ times the Executive’s annual base salary immediately prior to the Change in Control (or if higher, the annual base salary on the date the Executive’s employment is terminated) and (b) _____ times the average of the annual bonuses paid to the Executive in the last three full calendar years of employment under the Citizens Republic Bancorp, Inc. Management Incentive Plan (“MIP”) or such comparable plan in which Executive may have participated (such amount, the “Severance Payment”). In the event that Executive has not participated in the MIP or comparable plan (either because he or she was not employed by the Corporation or otherwise) for 3 full calendar years, then the above referenced bonus amount shall be determined by averaging the annual bonuses paid to the Executive for the actual number of full calendar years worked during such 3 calendar year period and for such calendar year(s) where the Executive did not complete the full calendar year of employment with the Corporation, then the average percent paid out to participants in the MIP or comparable plan multiplied by the Executive’s individual participation rate shall be utilized to determine the amount for such year(s).

               (2) The Severance Payment shall be payable within 60 days following the date of the Executive’s Separation from Service, provided that, except as provided with respect to an Anticipatory Termination (as defined in paragraph 3 below), in the event that the Executive is a “specified employee” within the meaning of Code Section 409A (with such classification to be determined in accordance with the methodology established by the applicable employer) (a “Specified Employee”) as of the date of the Executive’s Separation from Service, the Severance Payment shall instead be paid, with interest on any delayed payment at the applicable federal rate provided for in Code Section 7872(f)(2)(A) (“Interest”), on the

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earlier of the first business day (a) of the seventh month following the Executive’s Separation from Service, or (b) the Executive’s death following Separation from Service (the “409A Payment Date”).

               (3) Notwithstanding the foregoing, in the event of an Anticipatory Termination, the Severance Payment shall be paid as follows: (i) if such Change in Control is a “change in control event” within the meaning of Code Section 409A, (A) except as provided in clause (i)(B), on the date of such Change in Control, or (B) if the Executive is a Specified Employee as of the date of the Executive’s Separation from Service, on the 409A Payment Date, and (ii) if such Change in Control is not a “change in control event” within the meaning of Code Section 409A, (A) except as provided in clause (ii)(B), on the first business day following the three-month anniversary of the date of such Anticipatory Termination, or (B) if the Executive is a Specified Employee as of the date of the Executive’s Separation from Service, on the 409A Payment Date. Interest with respect to the period, if any, from the date of the Change in Control until the actual date of payment shall be paid on the Severance Payment made in connection with an Anticipatory Termination.

               (4) Notwithstanding the foregoing, on the first anniversary of the effective date of this Agreement, the Severance Payment provided for in paragraph 1.A(1) shall be reduced from two times base salary plus two times bonus to one times base salary and one times bonus.

               B. The Executive shall continue to be covered, at the Corporation’s cost, by the medical and dental benefit plans that are in effect on the date of the Executive’s Separation from Service and that cover executive employees, for a period of _________ (___) months (the “Benefit Continuation Period”) after the Executive’s Separation from Service; provided, however, that such medical and dental benefits provided during the Benefit Continuation Period shall be provided in such a manner that such benefits (and the costs and premiums thereof) are excluded from the Executive’s income for federal income tax purposes and, if the Corporation reasonably determines that providing continued coverage under one or more of its health care benefit plans contemplated herein could be taxable to the Executive, the Corporation shall provide such benefits at the level required hereby through the purchase of individual insurance coverage; provided, however, that if during such time period the Executive should enter into other employment providing comparable benefits, the Executive’s participation in such plans of the Corporation shall cease.

               C. If the Executive was furnished with a club membership, that membership (as it relates to the Executive) shall terminate as of the Executive’s Separation from Service, and the Corporation either shall transfer or terminate the membership in accordance with the by-laws and/or rules and procedures of the applicable club; provided, however, that the Executive shall incur no new club fees following Separation from Service and also shall have no further financial liability for new obligations thereunder.

               D. All stock options and restricted stock previously granted by the Corporation to the Executive, whether or not then exercisable, shall become immediately vested and exercisable.

               E. For a period of one year following Executive’s Separation from Service, the Executive shall be entitled to outplacement services provided by an outplacement service provider designated by the Corporation. The cost of providing the outplacement services shall be borne solely by the Corporation, and shall be equal to the lesser of (i) 10% of the Executive’s annual base salary immediately prior to the Change in Control (or, if higher, the Executive’s annual base salary as of the date of the Executive’s Separation from Service) and (ii) $20,000.

               F. If the payment of any of the foregoing amounts or benefits (when added to any other payments or benefits provided to the Executive in the nature of compensation) will result in the payment of an excess parachute payment as that term is defined in Code Section 280G, then in such event, the amount of the payment shall be decreased to the maximum amount that could be paid without the payment being deemed an excess parachute payment.

2. For purposes of this Agreement, a “Change in Control” shall mean:

               A. The acquisition by any individual, entity or group (within the 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 l3d-3 promulgated under the Exchange Act) of 20% or more of either (1) the then outstanding shares of common stock of the Corporation (the “Outstanding Corporation Common Stock”) or (2) the combined voting power of the then outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “Outstanding Corporation Voting Securities”); provided, however, that for purposes of

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this subparagraph A, the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly from the Corporation, (ii) any acquisition by the Corporation, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Corporation or any corporation controlled by the Corporation, or (iv) any acquisition by any corporation pursuant to a transaction which complies with clauses (1), (2) and (3) of subparagraph C of this paragraph 2; or

          B. Individuals who, as of the date hereof, constitute the Board of Directors of the Corporation (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board of Directors; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Corporation’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board (either by a specific vote or by approval of the proxy statement of the Corporation in which such person is named as a nominee for director, without written objection to such nomination) shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or contests by or on behalf of a person other than the Board of Directors of the Corporation; or

          C. Consummation of a reorganization, merger, share exchange with another corporation pursuant to Michigan Compiled Laws Section 450.1702, or consolidation, sale or other disposition of all or substantially all of the assets of the Corporation (a “Business Combination”), in each case, unless, following such Business Combination: (1) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Corporation Common Stock and Outstanding Corporation Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 65% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Corporation or all or substantially all of the Corporation’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Corporation Common Stock and Outstanding Corporation Voting Securities, as the case may be; (2) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Corporation or such corporation resulting from the Business Combination) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination; and (3) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board immediately prior to the time of the execution of the initial agreement, or of the action of the Board of Directors of the Corporation, providing for such Business Combination; or

          D. Approval by the stockholders of the Corporation of a complete liquidation or dissolution of the Corporation.

3. Executive’s Separation from Service shall be as described in this paragraph 3 if the Separation from Service results from the Executive’s termination of employment at any time within 3 months prior to (such termination of employment, an “Anticipatory Termination”), on the date of, or within 24 months after a Change in Control of the Corporation as defined in paragraph 2 of this Agreement either by (a) involuntary dismissal by the Corporation; or (b) the Executive’s constructive termination as described in the following sentences of this paragraph 3. If (i) there is a significant reduction in the scope of the Executive’s authority or in the extent of the Executive’s powers, functions, duties or responsibilities, or (ii) the Executive’s annual rate of compensation is reduced or fringe benefits, including relocation benefits, are not provided to the Executive on a basis commensurate with other executives of the Corporation and its subsidiary banks, or (iii) there are changes in the Executive’s responsibilities for the Corporation which require moving the Executive’s job location to a location outside of the lower peninsula of the State of Michigan, then the Executive shall be entitled to give written notice thereof to the Board of Directors of the Corporation. If within 60 days following such notice, the Executive and the Board of Directors of the Corporation do not resolve the Executive’s concerns to the satisfaction of the Executive (the Executive’s satisfaction or dissatisfaction to be communicated to the Board of Directors of the Corporation in writing within such 60 days), the Executive’s employment shall be deemed to be constructively terminated at the end of such 60-day period, provided that Executive in fact experiences a Separation from Service.

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4. The specific arrangements referred to above are not intended to exclude the Executive’s participation in other benefits available to executive personnel of the Corporation generally or to preclude other compensation or benefits as may be authorized by the Corporation’s Board of Directors from time to time provided however, Executive shall not be eligible to receive any benefits under the Corporation’s Severance Pay Plan if Executive receives the severance amount and other benefits under this Agreement.

5. As partial consideration for the above, the Executive agrees not to disclose any confidential information about the Corporation and its operation to which the Executive was privy during the course of the Executive’s employment by the Corporation. Further, the Executive agrees not to accept employment or consult for or otherwise assist any competitor of the Corporation for a period of _____ months following the Executive’s Separation from Service. For purposes of the foregoing, “competitor” means any financial institution that conducts business from any location within 50 miles of any location at which the Corporation or any subsidiary bank had an office on the day immediately prior to the day on which the Change in Control of the Corporation occurred.

6. This Agreement shall be binding upon and shall inure to the benefit of the respective successors, assigns, legal representatives and heirs to the parties.

7. Any payment or delivery required under this agreement shall be subject to all requirements of the law with regard to withholding, filing, making of reports and the like, and the Corporation shall use its best efforts to satisfy promptly all such requirements.

8. Notwithstanding anything contained herein to the contrary, this Agreement shall be terminated and no benefits to the Executive shall be payable if, subsequent to the effective date of this Agreement, the Executive accepts a new position within the Corporation that is not eligible to participate in the Corporation’s change in control program at the time Executive accepts such position or if, at any time, the Executive shall resign voluntarily (other than as provided in paragraph 3), become incapacitated, voluntarily take another position requiring a substantial portion of the Executive’s time, or die. This Agreement also shall terminate upon termination for cause of the Executive’s employment as an officer of the Corporation or any subsidiary bank by the Incumbent Board. For purposes of the foregoing, “termination for cause” means termination due to the Executive’s conviction of a felony, a determination that the Executive is guilty of sexual harassment of another employee, the Executive’s proven embezzlement from the Corporation or a subsidiary bank, the Executive’s gross misconduct or incompetence, the Executive’s disclosure of confidential information of the Corporation or intentional assistance of a competitor of the Corporation (as defined in paragraph 5), or any other activity of the Executive which has or may have a material adverse effect on the finances or business reputation of the Corporation or a subsidiary bank.

9. Any and all disputes, controversies or claims arising out of or in connection with or relating to this Agreement or any breach or alleged breach thereof shall, upon the request of either party, be submitted to and settled by arbitration in the State of Michigan pursuant to the Voluntary Labor Arbitration Rules, then in effect, of the American Arbitration Association (or at any other place or under any other form of arbitration mutually acceptable to the parties involved). The parties hereto specifically agree to arbitrate with the other party in a proceeding with regard to all issues and disputes, and to permit pre-hearing discovery in the time and manner provided by the then applicable Federal Rules of Civil Procedure. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. Notice of the demand for arbitration shall be filed, in writing, with the other party to this Agreement and with the American Arbitration Association. The demand for arbitration shall be made within a reasonable time after the claim, dispute, or other matter in question arose where the party asserting the claim should reasonably have been aware of the same, but in no event later than the applicable Michigan or federal statute of limitations. The arbitrator shall have no power to add to, subtract from, or alter the terms of this Agreement, and shall render a written decision setting forth findings and conclusions only as to the claims or disputes at issue. Any award by the arbitrator shall be final and conclusive upon the parties, and a judgement thereon may be entered in the highest court for the forum, state or federal, having jurisdiction. All expenses of the arbitration process shall be borne by the Corporation. The Corporation shall reimburse the Executive for the reasonable fees of legal counsel as incurred (within ten days following the Corporation’s receipt of an invoice from the Executive), at any time from the effective date of this Agreement through the Executive’s remaining lifetime (or, if longer, through the 20th anniversary of the effective date of this Agreement) in connection with arbitrating the enforcement of any of the Executive’s rights under this Agreement. However, in no event shall the Executive be entitled to retain any fees so reimbursed if the claim brought by the Executive against the Corporation is in the arbitrator’s sole determination frivolous or was brought in bad faith, and the Corporation will be entitled to seek repayment from the Executive for such fees after such determination by the arbitrator. In order

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to comply with Code Section 409A, in no event shall the payments by the Corporation under this paragraph 9 be made later than the end of the calendar year next following the calendar year in which such fees and expenses were incurred, provided, that the Executive shall have submitted an invoice for such fees and expenses at least ten days before the end of the calendar year next following the calendar year in which such fees and expenses were incurred. The amount of such legal fees and expenses that the Corporation is obligated to pay in any given calendar year shall not affect the legal fees and expenses that the Corporation is obligated to pay in any other calendar year, and the Executive’s right to have the Corporation pay such legal fees and expenses may not be liquidated or exchanged for any other benefit.

10. The Corporation may, in consultation with the Executive, modify the Agreement, in the least restrictive manner necessary and without any diminution in the value of the payments to the Executive, in order to cause the provisions of the Agreement to comply with or be exempt from the requirements of Code Section 409A, so as to avoid the imposition of taxes and penalties on the Executive pursuant to Code Section 409A. If benefits or payments under this Agreement must be delayed or reduced to comply with the Emerging Economic Stabilization Act of 2008, as amended (the “Act”), the Corporation, in consultation with the Executive, shall modify the Agreement in the least restrictive manner necessary to comply with the Act.

11. The invalidity or unenforceability of any provision of this Agreement shall not affect the enforceability or validity of any other provision hereof.

12. This Agreement constitutes the entire agreement of the parties with respect to the subject matter addressed in this Agreement. This Agreement replaces and supercedes in the entirety any previous change in control agreement between Executive and the Corporation, including the Prior Agreement. This Agreement may be amended only in a written document signed by both the Corporation and the Executive.

13. This Agreement shall be governed by the laws of the State of Michigan.

 

 

 

 

 

 

 

CITIZENS REPUBLIC BANCORP, INC.

 

 

 

EXECUTIVE

 

By:

 

 

 

 

 

 

 

 

 

 

 

 

 

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