-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Q7VTKA/HguNIYvHeVAvwOZIYAt0giYGfZJGYosHLpplOD1htkkAGO9UadDumQKdR cFEtXDK0+pM1+eMkGBtk8w== 0001045969-01-500830.txt : 20010813 0001045969-01-500830.hdr.sgml : 20010813 ACCESSION NUMBER: 0001045969-01-500830 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20010810 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: REPUBLIC BANCORP INC CENTRAL INDEX KEY: 0000813808 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 382604669 STATE OF INCORPORATION: MI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 1070 EAST MAIN STREET CITY: OWOSSO STATE: MI ZIP: 48867 BUSINESS PHONE: 5177257337 MAIL ADDRESS: STREET 1: 1070 EAST MAIN STREET STREET 2: P.O. BOX 70 CITY: OWOSSO STATE: MI ZIP: 48867 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NETBANK INC CENTRAL INDEX KEY: 0001035826 STANDARD INDUSTRIAL CLASSIFICATION: SAVINGS INSTITUTIONS, NOT FEDERALLY CHARTERED [6036] IRS NUMBER: 582224352 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-53391 FILM NUMBER: 1703556 BUSINESS ADDRESS: STREET 1: 950 NORTH POINT PARKWAY STREET 2: SUITE 350 CITY: ALPHARETTA STATE: GA ZIP: 30005 BUSINESS PHONE: 7703924990 MAIL ADDRESS: STREET 1: 950 NORTH POINT PARKWAY STREET 2: SUITE 350 CITY: ALPHARETTA STATE: GA ZIP: 30005 SC 13D 1 dsc13d.txt SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) NETBANK, INC. (Name of Issuer) COMMON STOCK, $.01 PAR VALUE (Title of Class of Securities) 640933107 (CUSIP Number) Dana M. Cluckey President and Chief Executive Officer Republic Bancorp Inc. 1070 East Main Street Owosso, Michigan 48867 (517) 725-7337 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copy to: Brad B. Arbuckle, Esq. Miller, Canfield, Paddock and Stone, P.L.C. 840 West Long Lake Road, Suite 200 Troy, Michigan 48098-6358 (248) 879-2000 June 29, 2001 (Date of Event Which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [_]. (Continued on following pages) -1- SCHEDULE 13D CUSIP NO. 640933107 1 NAME OF REPORTING PERSON: Republic Bancorp Inc. I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (entities only): 38-2604669 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS: AF (See Item 3). 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6 CITIZENSHIP OR PLACE OF ORGANIZATION: Michigan. 7 SOLE VOTING POWER: 1,689,189 (See Item 5). NUMBER OF SHARES BENEFICIALLY 8 SHARED VOTING POWER: 0 (See Item 5). OWNED BY EACH REPORTING PERSON 9 SOLE DISPOSITIVE POWER: 1,689,189 (See Item 5). WITH 10 SHARED DISPOSITIVE POWER: 0 (See Item 5). 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 1,689,189 (See Item 5). 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_] (See Item 5). 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 5.6% (See Item 5). 14 TYPE OF REPORTING PERSON: HC/CO (See Item 3). -2- SCHEDULE 13D Pursuant to General Instruction C of Schedule 13D, the information called for by Items 2-6, inclusive, of Schedule 13D has been given with respect to Republic Bancorp Inc., a Michigan corporation ("Bancorp"). Bancorp disclaims beneficial ownership of any and all shares of "NetBank Common Stock" (as hereinafter defined) beneficially owned by any director, officer or employee of Bancorp. Bancorp has been advised that each director, officer and employee of Bancorp disclaims beneficial ownership of any and all shares of NetBank Common Stock beneficially owned by Bancorp. No director, officer or employee of Bancorp, acting in an individual capacity, may vote, or direct the voting of, any shares of NetBank Common Stock beneficially owned by Bancorp. No director, officer or employee of Bancorp, acting in an individual capacity, may dispose of, or direct the disposition of, any shares of NetBank Common Stock beneficially owned by Bancorp. No director, officer or employee of Bancorp, in an individual capacity, has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any shares of NetBank Common Stock beneficially owned by Bancorp. Accordingly, no director, officer or employee of Bancorp shall be deemed the beneficial owner of any shares of NetBank Common Stock beneficially owned by Bancorp solely by virtue of the fact that he or she is a director, officer or employee of Bancorp. ITEM 1. SECURITY AND NETBANK. This Statement on Schedule 13D relates to the common stock $.01 par value per share ("NetBank Common Stock"), of NetBank, Inc., a Georgia corporation ("NetBank"). The principal executive offices of NetBank are located at 11475 Great Oaks Way, Alpharetta, Georgia, 30022. ITEM 2. IDENTITY AND BACKGROUND. (a)-(c), (f): This Statement on Schedule 13D is being filed by Republic Bancorp Inc., a Michigan corporation. Bancorp is a registered bank holding company, its principal office is located at 122 South Main Street, Ann Arbor, Michigan 48104, with its executive office located at 1070 East Main Street, Owosso, Michigan 48867. The names of the directors and executive officers of Bancorp and their respective business addresses or residences, citizenship and present principal occupations or employment, as well as the names, principal businesses and addresses of any corporations or other organizations in which such employment is conducted, are set forth on Schedule I hereto, which Schedule I is incorporated herein by reference. (d), (e): During the last five years, Bancorp has not (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which proceeding such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. To the knowledge of Bancorp, during the past five years none of the persons listed in Schedule I hereto has (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which proceeding such person was or is subject to a judgment, decree or final order enjoining -3- future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. All 1,689,189 of the shares of NetBank Common Stock reported as beneficially owned by Bancorp were acquired as of June 29, 2001 in connection with the sale of Bancorp's wholly owned subsidiary, Market Street Mortgage Corporation, a Michigan corporation ("MSM") to NetBank for $5,000,000 in cash and 1,689,189 shares of NetBank Common Stock (the "Purchase Price"). The 1,689,189 shares of NetBank Common Stock that are the subject of this Schedule 13D represent the portion of the Purchase Price that was paid in NetBank Common Stock. ITEM 4. PURPOSE OF TRANSACTION. The shares of NetBank Common Stock reported as beneficially owned by Bancorp were acquired in connection with the sale of MSM to NetBank. With respect to the sale of MSM to NetBank and Bancorp's acquisition of the NetBank Common Stock as a part of the Purchase Price, Bancorp, as a bank holding company, was required to file a notice with the Board of Governors of the Federal Reserve System (the "FRB"). The FRB's approval of Bancorp's acquisition of the NetBank Common Stock was conditioned on Bancorp's commitment that, without prior approval of the FRB, Bancorp would not (i) take any action that would cause NetBank or NetBank, a federal savings bank and wholly owned subsidiary of NetBank (the "Bank") to become a subsidiary of Bancorp; (ii) acquire or retain shares that would cause the combined interest of Bancorp, its officers, directors, and affiliates to equal or exceed twenty-five (25%) percent of NetBank or Bank; (iii) exercise or attempt to exercise a controlling influence over the management or policies of NetBank or Bank; (iv) seek or accept representation on the Board of Directors of NetBank or Bank; (v) have or seek to have any representative serve as an officer, agent or employee of NetBank or Bank; (iv) propose a director or slate of directors in opposition to a nominee or slate of nominees proposed by the management or board of directors of NetBank or Bank; (vii) solicit or participate in soliciting proxies with respect to any matter presented to the shareholders of NetBank or Bank; (viii) attempt to influence the dividend policies or practices of NetBank or Bank; (ix) attempt to influence the loan and credit decisions or policies of Bank, the pricing of services, any personnel decisions, the location of any offices, branching, the hours of operations, or similar activities of Bank; (x) enter into any other material banking or non banking transactions with NetBank or Bank, subject to certain exceptions; and (xi) dispose or threaten to dispose of any shares of NetBank in any manner as a condition to any specific action or non-action of NetBank (collectively, (i) - (xi) above may be referred to as the "FRB Commitments"). In addition to the FRB Commitments, Bancorp and NetBank have entered into an "Investment Agreement." Under the Investment Agreement, for a period of 364 days following June 29, 2001, Bancorp will not, without the prior written consent of NetBank, sell or otherwise transfer the shares of NetBank Common Stock received as a part of the Purchase Price. An exception to the required holding period under the Investment Agreement permits Bancorp to sell or otherwise transfer that number of the shares of NetBank Common Stock which exceed 5% of the outstanding shares of NetBank Common Stock. Subject to the Commitments and the restrictions on Bancorp's sale of the NetBank Common Stock received as a part of the Purchase Price, from time to time Bancorp may purchase or sell additional shares of NetBank Common Stock in unsolicited market transactions at the prevailing market price or in privately negotiated transactions. The response to Item 6 of this Schedule 13D is incorporated herein by this reference. -4- * * * * * Bancorp, does not presently have any plans or proposals which relate to or would result in, (a) the acquisition by any person of additional securities of NetBank or the disposition of securities of NetBank; (b) an extraordinary corporate transaction (such as a merger, reorganization or liquidation) involving NetBank or any of its subsidiaries; (c) a sale or transfer of a material amount of the assets of NetBank or any of its subsidiaries; (d) any change in the present board of directors or management of NetBank (including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board of NetBank); (e) any material change in the present capitalization or dividend policy of NetBank; (f) any material change in the business or corporate structure of NetBank; (g) any changes in the charter or bylaws (or instruments corresponding thereto) of NetBank or other actions which may impede the acquisition of control of NetBank by any person; (h) causing a class of securities of NetBank to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of NetBank becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; (j) seeking FRB approval to engage in any of the actions prohibited by the Commitments; or (k) any action similar to any of those enumerated in this paragraph. ITEM 5. INTEREST IN SECURITIES OF NETBANK. (a) (i) Bancorp is the beneficial owner of 1,689,189 shares of NetBank Common Stock, which constitute 5.6% of the shares of NetBank Common Stock deemed issued and outstanding as of May 11, 2001. The number of shares of NetBank Common Stock reported in this section (a)(i) as beneficially owned by Bancorp does not include any of the shares of NetBank Common Stock reported as beneficially owned by any director or executive officer of Bancorp. (ii) To the knowledge of Bancorp no director or executive officer of Bancorp, considered individually, beneficially owns any shares of NetBank Common Stock. (b) (i) Bancorp has the power to vote, or to direct the voting of, all of the shares of NetBank Common Stock reported as beneficially owned by it in the response to subsection (a)(i) of this Item 5. Bancorp has the power to dispose of, or to direct the disposition of, all of the shares of NetBank Common Stock reported as beneficially owned by it in the response to subsection (a)(i) of this Item 5. (ii) To the knowledge of Bancorp no director or executive officer of Bancorp, considered individually, has the power to dispose of, or to direct the disposition of, any shares of NetBank Common Stock. (c) Except as otherwise indicated in this subsection (C) or the response to Item 3 of this Schedule 13D, it is believed that none of Bancorp or the directors and officers of Bancorp has personally effected any transactions in NetBank Common Stock in the last 60 days. -5-
List of Transactions Effected in Last 60 days Date of Type of No. of Price Per Name Transaction Transaction Shares Share ---- ----------- ----------- ------ ----- Bancorp June 29, 2001 Received as part of 1,689,189 $10.41 Purchase Price for sale of subsidiary
(d) (i) Bancorp has the right to receive or the power to direct the receipt of dividends from, and the proceeds from the sale of, all of the shares of NetBank Common Stock reported as beneficially owned by it in the response to subsection (a)(i) of this Item 5. (ii) Except as otherwise indicated in subsection (a) of this Item 5 or this subsection (d), to the knowledge of Bancorp no director or executive officer of Bancorp, considered individually, has the right to receive or the power to direct the receipt of dividends from, and the proceeds from the sale of, any shares of NetBank Common Stock. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF NETBANK. Bancorp, Republic Bank, MSM, NetBank, and NetBank's wholly owned subsidiary, Net Interim, Inc., a Georgia corporation ("Interim"), entered into a definitive Acquisition Agreement dated as of April 15, 2001. The Acquisition Agreement provides for the acquisition of MSM by NetBank through the merger of Interim with and into MSM, with all of the MSM shares being converted into a right to receive the Purchase Price. The acquisition, which was subject to certain banking regulatory approvals and to shareholder approvals, was completed on June 29, 2001. The Acquisition Agreement dated as of April 15, 2001 by NetBank, Inc. and Net Interim, Inc. to Acquire Market Street Mortgage Corporation from Republic Bank, Republic Bancorp, Inc. and Certain Shareholders dated April 15, 2001 was filed as Exhibit 99.1 to the Current Report on Form 8-K dated April 20, 2001 of Bancorp that was filed with the Securities and Exchange Commission on April 20, 2001 (file no. 0-15734). The response to Item 4 of this Schedule 13D is incorporated herein by this reference. ITEM 7. MATERIALS TO BE FILED AS EXHIBITS. 1. The Acquisition Agreement dated as of April 15, 2001 by NetBank, Inc. and Net Interim, Inc. to Acquire Market Street Mortgage Corporation from Republic Bank, Republic Bancorp, Inc. and Certain Shareholders was filed as Exhibit 99.1 to the Current Report on Form 8-K dated April 20, 2001 of Bancorp that was filed with the Securities and Exchange Commission on April 20, 2001 (file no. 0-15734). 2. Investment Agreement dated as of June 29, 2001 by NetBank, Inc. and Republic Bancorp Inc. -6- SIGNATURE After reasonable inquiry and to the best of the undersigned's knowledge and belief, the undersigned certifies that the information set forth in this Statement is true, complete and correct. REPUBLIC BANCORP INC. Date: August 10, 2001 By /s/ Thomas F. Menacher --------------------------------------- Thomas F. Menacher, Executive Vice President, Treasurer and Chief Financial Officer -7- SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF REPUBLIC BANCORP INC. The names, business addresses and present principal occupations of the directors and executive officers of Republic Bancorp Inc. are set forth below. If no business address is given, the director's or executive officer's business address is, 1070 East Main Street, Owosso, Michigan 48867. Unless otherwise indicated, the business address of each Bancorp's director or executive officer is also the business address of such person's employer, if any. Unless otherwise indicated, all directors and executive officers listed below are citizens of the United States. DIRECTORS NAME PRESENT PRINCIPAL OCCUPATION AND ADDRESS Jerry D. Campbell Chairman of the Board of Bancorp Dana M. Cluckey President and Chief Executive Officer of Bancorp George J. Butvilas Vice Chairman of the Board of Bancorp Mary P. Cauley Attorney, Plunkett & Cooney Richard J. Cramer, Sr. President, Dee Cramer, Inc., sheet metal, heating and air conditioning contractors Dr. George A. Eastman Orthodontic Consultant Howard J. Hulsman Chairman of the Board, Ross Learning, Inc. Gary Hurand President, of Dawn Donut Systems, Inc. Dennis J. Ibold President, Petersen & Ibold (attorneys at law) Stanley A. Jacobson Attorney/Real Estate Developer, Mark Jacobson & Associates, Inc. John J. Lennon Retired chairman and Chief Executive Officer, White Engines, Inc. Sam H. McGoun Senior Account Executive, Griffin, Smalley & Wilkerson Inc., an insurance agency Kelly E. Miller President and Chief Executive Officer, Miller Exploration Company, a publicly-held oil and gas exploration and production company Joe D. Pentecost President, Better Properties, Inc., a commercial real estate development and management company Randolph P. Piper Attorney at law Dr. Isaac J. Powell Practicing physician, board certified in urology -8- B. Thomas M. Smith, Jr. Retired, formerly consultant Dr. Jeoffrey K. Stross Professor of Internal Medicine, University Medical Center, The University of Michigan Peter Van Pelt Retired, formerly management consultant Steven E. Zack Lubin, Schwartz & Goldman, insurance EXECUTIVE OFFICERS NAME PRESENT PRINCIPAL OCCUPATION AND ADDRESS Jerry D. Campbell Chairman. Dana M. Cluckey President and Chief Executive Officer. Thomas F. Menacher Executive Vice President, Treasurer, Chief Financial Officer. -9- EX-2 3 dex2.txt INVESTMENT AGREEMENT EXHIBIT 2 INVESTMENT AGREEMENT -------------------- To the Board of Directors of NetBank, Inc., a Georgia corporation ("NetBank"): 1. The Holding Company hereby represents and warrants that the shares of NetBank common stock (the "Common Stock") that are being issued to the Holding Company in the merger (the "Merger") of Market Street Mortgage Corporation with and into a wholly owned subsidiary of NetBank will be held by the Holding Company for investment for the Holding Company's own account and not with a view to, or for, resale, transfer or distribution. For purposes of this Investment Agreement, the term "Closing Date" means the date on which the Merger and related transactions are consummated as provided in the Merger agreement between NetBank and the Holding Company and certain other parties. The Holding Company represents and warrants that it has no intention of participating, directly or indirectly, in a distribution of the Common Stock. 2. The Holding Company understands that the Common Stock has not been registered under federal or state securities laws by reason of special exemptions thereunder that depend upon the Holding Company's investment intent as outlined herein. 3. The Holding Company further understands that by reason of exemptions to be relied upon in connection with the issuance of the securities to be purchased hereunder, the Common Stock will not be freely transferable and that any proposed sale or other transfer of the Common Stock may be prohibited and will in any event be subject to significant restrictions. Any certificate representing the shares of Common Stock will bear a legend to such effect, and a stop-transfer order with respect to such shares of Common Stock will be noted in NetBank's records. 4. The Holding Company understands and agrees that the Common Stock may not be sold or transferred except pursuant to effective registration statements under applicable federal and state securities laws, unless exemptions from such registrations are available under such statutes with respect to the proposed sale or transfer. Additionally, the Holding Company hereby agrees that it will not, directly or indirectly, during a period of three hundred and sixty four days after the Closing Date (the "Restricted Period"), without NetBank's prior written consent, sell or otherwise transfer (or agree to sell or otherwise transfer) any shares of Common Stock (or securities convertible into, exercisable for or exchangeable for Common Stock) of NetBank or any subsidiary; provided, that the foregoing limitation shall not apply to the sale, beginning ninety (90) days following the Closing Date, of that portion of the NetBank Common Stock which exceeds five percent (5%) of the outstanding shares of NetBank Common Stock; provided futher that the Holding Company may, prior to the end of the Restricted Period, enter into hedging agreements (of any length) for the sale of the Common Stock, provided that (a) the settlement date for the transfer of ownership or legal title of the Common Stock is after the end of the Restricted Period and (b) in no circumstances will the legal title or ownership of the Common Stock be transferred to a third party prior to the end of the Restricted Period. 5. In order to ensure compliance with the provisions of this agreement and with applicable federal and state securities laws, the Holding Company understands and agrees that NetBank may, if it desires, refuse to transfer the Common Stock unless (i) registration statements under applicable securities laws are then in effect with respect to the Common Stock; (ii) the Holding Company's request for transfer is accompanied by a written opinion from legal counsel reasonably satisfactory to NetBank to the effect that exemptions from registration under applicable securities laws are available with respect to the proposed transfer, and that no such registration is required; or (iii) the Holding Company's request for transfer is accompanied by no-action letters or the then-equivalent with respect to such transfer issued by the Staff of the Securities and Exchange Commission and the applicable state securities commissions. 6. The Holding Company agrees that, in order to attempt to avoid significant disruption in the market for shares of NetBank Common Stock, prior to selling more than one-half of one percent (.5%) of the outstanding shares of NetBank in any period of ninety (90) consecutive days, the Holding Company will consult with NetBank with regard to the disposition of such shares; provided that, so long as the Holding Company does first consult with NetBank in good faith as provided in this Paragraph 6, the Holding Company shall not be prevented from selling more than one-half of one percent (.5%) of the outstanding shares of NetBank except as provided in Paragraph 4 with respect to the Applicable Period and the 90-day period. Executed as of the 29th day of June 2001. Very truly yours, REPUBLIC BANCORP, INC. By: /s/ Dana M. Cluckey ---------------------------------------- Printed Name: Dana M. Cluckey Title: President and Chief Executive Officer 2 -----END PRIVACY-ENHANCED MESSAGE-----