SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) September 9, 1999
GRAND PREMIER FINANCIAL, INC.
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(Exact Name of Registrant as Specified in Charter)
Delaware 0-20987 36-4077455
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(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
486 West Liberty Street, Wauconda, Illinois 60084
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (847) 487-1818
ITEM 5. OTHER EVENTS.
On September 9, 1999, Grand Premier Financial, Inc., a
Delaware corporation (the "Company"), entered into an Agreement and
Plan of Merger (the "Merger Agreement") with Old Kent Financial
Corporation, a Michigan corporation ("Old Kent"), and OK Merger
Corporation, a Michigan corporation and wholly-owned subsidiary of Old
Kent ("Merger Subsidiary"), providing for the merger (the "Merger") of
the Company with and into Merger Corporation. In the Merger, each
share of the Company's common stock will be converted into 0.4231
shares of Old Kent's common stock, and each share of the Company's
Series B and Series C preferred stock will be converted into one share
of Old Kent preferred stock with substantially identical terms. The
Company and Old Kent issued a joint press release on September 10,
1999, announcing the execution of the Merger Agreement, a copy of
which is filed as Exhibit 99.1 hereto.
The Merger is intended to constitute a tax-free
reorganization under the Internal Revenue Code of 1986, as amended,
and to be accounted for as a pooling-of-interests. Consummation of
the Merger is subject to various conditions, including (i) the
approval of the Merger Agreement and the Merger by the holders of a
majority of the Company's outstanding common stock, (ii) the receipt
of requisite regulatory approvals, and (iii) registration of the
shares of Old Kent common stock to be issued in the Merger under the
Securities Act of 1933, as amended.
Concurrently with the execution of the Merger Agreement, the
Company and Old Kent entered into a Stock Option Agreement, dated as
of September 9, 1999 (the "Stock Option Agreement"), pursuant to which
the Company granted Old Kent an option to purchase, upon the terms and
subject to the conditions set forth in the Stock Option Agreement, up
to 4,469,722 shares (or approximately 19.9%) of the Company's common
stock at a per share exercise price of $15.00, subject to adjustment
as provided in the Stock Option Agreement.
In addition, in connection with the execution of the Merger
Agreement, certain holders of the Company's common and preferred stock
entered into a Voting Agreement with Old Kent, dated as of September
9, 1999 (the "Voting Agreement"), pursuant to which such stockholders
have agreed to vote their shares of common stock in favor of the
approval of the Merger and the Merger Agreement and have agreed, to
the extent that they hold shares of the Company's preferred stock, not
to dissent from the Merger. As of the date of the Voting Agreement,
the stockholders who are parties to the Voting Agreement owned, in the
aggregate, approximately 36.33% of the Company's outstanding common
stock (or 38.80% of the Company's common stock, after giving effect to
the conversion of 7,000 shares of the Company's Series B convertible
preferred stock held by one such stockholder and the exercise of
options to acquire shares of the Company's common stock held by
another such stockholder that are exercisable within 60 days of the
date of the Voting Agreement). Such stockholders have also agreed to
certain restrictions relating to the disposition of their shares of
Company stock.
Immediately prior to the execution of the Merger Agreement
and Stock Option Agreement, the Company also entered into Amendment
No. 1, dated September 9, 1999 (the "Rights Amendment"), to the Rights
Agreement, dated as of July 8, 1996, between the Company and Grand
Premier Trust and Investment, Inc., N.A., as successor to Premier
Trust Services, Inc., as rights agent, to make the provisions of the
Rights Agreement inapplicable to the transactions contemplated by the
Merger Agreement, the Stock Option Agreement, the Voting Agreement,
and certain affiliate agreements entered into, or to be entered into,
between Old Kent and affiliates of the Company.
The foregoing summary of the Merger Agreement, the Stock
Option Agreement, the Voting Agreement and the Rights Amendment is
qualified in its entirety by reference to the text of such documents,
copies of which are filed or incorporated by reference as exhibits
hereto, and are incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
(c) Exhibits.
2.1 Agreement and Plan of Merger, dated as of September 9,
1999, between Grand Premier Financial, Inc., Old Kent
Financial Corporation and OK Merger Corporation.
4.1 Amendment No. 1, dated as of September 9, 1999, to the
Rights Agreement, dated as of July 8, 1996, between
Grand Premier Financial, Inc. and Grand Premier Trust
and Investment, Inc., N.A., as successor to Premier
Trust Services, Inc. (incorporated by reference to
Exhibit 4.1 to the Company's Form 8-A/A filed with the
Securities and Exchange Commission on September 14,
1999).
10.1 Stock Option Agreement, dated as of September 9, 1999,
by and between Grand Premier Financial, Inc. and Old
Kent Financial Corporation.
99.1 Press Release, dated September 10, 1999, jointly issued
by Old Kent Financial Corporation and Grand Premier
Financial, Inc.
99.2 Voting Agreement, dated as of September 9, 1999,
between Old Kent Financial Corporation and Brenton J.
Emerick, Thomas D. Flanagan, Howard A. McKee, Northland
Insurance Agency, Inc., Keeco, Inc., and Municipal
Insurance Company.
SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
GRAND PREMIER FINANCIAL, INC.
(Registrant)
Date: September 14, 1999 By: /s/ David L. Murray
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Name: David L. Murray
Title: Senior Executive Vice
President and Chief
Financial Officer
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EXHIBIT INDEX
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Exhibit
No. Description
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2.1 Agreement and Plan of Merger, dated as of September 9,
1999, by and between Grand Premier Financial, Inc., Old
Kent Financial Corporation and OK Merger Corporation.
4.1 Amendment No. 1, dated as of September 9, 1999, to the
Rights Agreement, dated as of July 8, 1996, between
Grand Premier Financial, Inc. and Grand Premier Trust
and Investment, Inc., N.A., as successor to Premier
Trust Services, Inc. (incorporated by reference to
Exhibit 4.1 to the Company's Form 8-A/A filed with the
Securities and Exchange Commission on September 15,
1999).
10.1 Stock Option Agreement, dated as of September 9, 1999,
by and between Grand Premier Financial, Inc. and Old
Kent Financial Corporation.
99.1 Press Release, dated September 10, 1999, jointly issued
by Old Kent Financial Corporation and Grand Premier
Financial, Inc.
99.2 Voting Agreement, dated as of September 9, 1999,
between Old Kent Financial Corporation and Brenton J.
Emerick, Thomas D. Flanagan, Howard A. McKee, Northland
Insurance Agency, Inc., Keeco, Inc., and Municipal
Insurance Company.
EXHIBIT 2.1
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Conformed Copy
Agreement and Plan of Merger
Between
Grand Premier Financial, Inc.,
Old Kent Financial Corporation,
and
OK Merger Corporation
Dated as of September 9, 1999
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Table of Contents
Page
Article I - The Transaction 1
1.1 Merger of Grand Premier with and into MergerSub 1
1.2 The Closing 2
1.3 Effective Time of the Merger 2
1.4 Additional Actions 3
1.5 Surviving Corporation 3
1.6 Bank Consolidation 3
Article II - Conversion and Exchange of Shares 4
2.1 Conversion of Shares 4
2.2 Upset Provision 6
2.3 Adjustments 7
2.4 Increase in Outstanding Shares of Grand
Premier Common Stock 10
2.5 Cessation of Stockholder Status 11
2.6 Surrender of Old Certificates and Distribution
of Stock 11
2.7 No Fractional Shares 13
2.8 Stock Options 14
2.9 Approval of Grand Premier 15
Article III - Old Kent's Representations and Warranties 15
3.1 Authorization, No Conflicts, Etc. 15
3.2 Organization and Good Standing 16
3.3 Subsidiaries 17
3.4 Capital Stock 17
3.5 Old Kent Capital Stock 18
3.6 Financial Statements 18
3.7 Absence of Undisclosed Liabilities 19
3.8 Absence of Material Adverse Change 19
3.9 Absence of Litigation 20
3.10 Conduct of Business 20
3.11 Material Contracts 20
3.12 Regulatory Filings 21
3.13 Registration Statement, Etc. 21
3.14 Investment Bankers and Brokers 22
3.15 Accounting and Tax Treatment 22
3.16 Agreements With Bank Regulators 22
3.17 Reserve for Loan Losses 22
3.18 Year 2000 Compliance 22
Article IV - Grand Premier's Representations and Warranties 24
4.1 Authorization, No Conflicts, Etc. 24
4.2 Organization and Good Standing 25
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Table of Contents
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Page
4.3 Subsidiaries 25
4.4 Capital Stock 26
4.5 Amendment of Grand Premier Rights 28
4.6 Financial Statements 28
4.7 Absence of Undisclosed Liabilities 29
4.8 Absence of Material Adverse Change 29
4.9 Absence of Litigation 30
4.10 No Indemnification Claims 30
4.11 Conduct of Business 30
4.12 Contracts 30
4.13 Regulatory Filings 31
4.14 Registration Statement, Etc. 31
4.15 Agreements With Bank Regulators 32
4.16 Tax Matters 32
4.17 Title to Properties 34
4.18 Condition of Real Property 34
4.19 Real and Personal Property Leases 35
4.20 Required Licenses, Permits, Etc. 36
4.21 Material Contracts 36
4.22 Certain Employment Matters 37
4.23 Employee Benefit Plans 38
4.24 Environmental Matters 40
4.25 Duties as Fiduciary 42
4.26 Investment Bankers and Brokers 42
4.27 Fairness Opinion 43
4.28 Grand Premier-Related Persons 43
4.29 Change in Business Relationships 44
4.30 Insurance 44
4.31 Books and Records 44
4.32 Loan Guarantees 45
4.33 Events Since December 31, 1998 45
4.34 Reserve for Loan and Lease Losses 46
4.35 Loan Origination and Servicing 46
4.36 No Insider Trading 46
4.37 Year 2000 Compliance 46
4.38 Joint Ventures; Strategic Alliances 47
4.39 Policies and Procedures 47
4.40 Accounting and Tax Treatment 47
Article V - Covenants Pending Closing 48
5.1 Disclosure Statements; Additional Information 48
5.2 Changes Affecting Representations 49
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Table of Contents
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Page
5.3 Grand Premier's Conduct of Business Pending
the Effective Time 49
5.4 Approval of Plan of Merger by Grand
Premier Stockholders 53
5.5 Regular Dividends 54
5.6 Technology-Related Contracts 54
5.7 Affiliates -- Compliance with Accounting and
Securities Rules 55
5.8 Indemnification and Insurance 56
5.9 Exclusive Commitment 57
5.10 Registration Statement 58
5.11 Other Filings 59
5.12 Miscellaneous Agreements and Consents 59
5.13 Access and Investigation 59
5.14 Confidentiality 60
5.15 Environmental Investigation 61
5.16 Implementation Agreements 63
5.17 Grand Premier Savings Plan 63
5.18 Accounting and Tax Treatment 63
5.19 Public Announcements 64
5.20 Year 2000 Preparations 64
Article VI - Conditions Precedent to Old Kent's Obligations 64
6.1 Renewal of Representations and Warranties, Etc. 64
6.2 Opinion of Legal Counsel 65
6.3 Required Regulatory Approvals 65
6.4 Stockholder Approval 65
6.5 Order, Decree, Etc. 65
6.6 Tax Matters 65
6.7 Registration Statement 66
6.8 Certificate as to Outstanding Shares 66
6.9 Change of Control Waivers 66
6.10 Pooling Assurances 66
6.11 Year 2000 Disruptions 67
Article VII - Conditions Precedent to Grand Premier's Obligations 67
7.1 Renewal of Representations and Warranties, Etc. 68
7.2 Opinion of Legal Counsel 68
7.3 Required Regulatory Approvals 68
7.4 Stockholder Approval 68
7.5 Decree, Etc. 68
7.6 Tax Matters 68
7.7 Registration Statement 69
7.8 Fairness Opinion 69
7.9 Listing of Shares 69
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Table of Contents
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Page
Article VIII - Abandonment of Merger 69
8.1 Mutual Abandonment 69
8.2 Upset Date 70
8.3 Old Kent's Rights to Terminate 70
8.4 Grand Premier's Rights to Terminate 71
8.5 Effect of Termination 71
Article IX - Miscellaneous 72
9.1 "Material Adverse Effect" Defined 72
9.2 "Knowledge" Defined 72
9.3 Nonsurvival of Representations, Warranties,
and Agreements 72
9.4 Amendment 73
9.5 Expenses 73
9.6 Specific Enforcement 73
9.7 No Jury 73
9.8 Waiver 74
9.9 Notices 74
9.10 Governing Law 74
9.11 Entire Agreement 75
9.12 Third Party Beneficiaries 75
9.13 Counterparts 75
9.14 Further Assurances; Privileges 75
9.15 Headings, Etc. 75
9.16 Calculation of Dates and Deadlines 75
9.17 Severability 76
DEFINITIONS
AMEX 7
Bank Consolidation 3
Consolidation Agreement 4
Book Entry Shares 11
Business Combination 57
Business Day 2
Call Reports 9
CERCLA 37
Certificates of Merger 2
Closing 2
Constituent Corporation 1
Control 24
Credit Suisse First Boston 39
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Table of Contents
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Page
Designated Contracts 62
DGCL 8
Effective Time 2
Employee Benefit Plan 36
Employment-Related Payments 35
Environmental Laws 19
Environmental Risk 57
ERISA 36
Ex-Date 36
Exchange Act 43
Exchange Agent 11
Exchange Ratio 4
FDIA 15
FDIC 17
Federal Bank Holding Company Act 15
Federal Reserve Board 15
FIB 20
Fiduciary Event 49
Final Index Price 6
Final Old Kent Price 6
Floor Old Kent Price 6
GAAP 17
Grand Premier 1
Grand Premier Adjustment Factor 9
Grand Premier Affiliate Agreements 52
Grand Premier Bank 1
Grand Premier Banks 1
Grand Premier Capital Stock 5
Grand Premier Common Stock 2
Grand Premier Disclosure Statement 22
Grand Premier Option Plans 13
Grand Premier Preferred Stock 4
Grand Premier Rights 25
Grand Premier Rights Agreement 25
Grand Premier Savings Plan 25
Grand Premier Series B Preferred Stock 4
Grand Premier Series C Preferred Stock 4
Grand Premier's Financial Statements 26
Grand Premier's Leases 33
Grand Premier's Real Property 32
Grand Premier's Representatives 40
Grand Premier-Related Person 40
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Table of Contents
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Page
Hazardous Substance 37
Implementation Agreements 59
Index Companies 7
Initial Index Date 7
Initial Index Price 7
Initial Old Kent Price 6
Insurance Amount 53
Internal Revenue Code 1
IRS 31
Knowledge 67
Material Adverse Effect 67
Merger 1
MergerSub 1
Michigan Act 1
Michigan Banking Code 3
NASDAQ 7
National Bank Act 3
NYSE 7
OCC 20
Old Common Certificates 10
Old Kent 1
Old Kent Adjustment Factor 8
Old Kent Capital Stock 5
Old Kent Common Stock 4
Old Kent Disclosure Statement 14
Old Kent DRIP 9
Old Kent Rights Agreement 5
Old Kent Rights 5
Old Kent Series D Preferred Stock 4
Old Kent Series E Preferred Stock 5
Old Kent's Financial Statements 17
Old Preferred Certificates 10
Option Agreement 1
PBGC 36
Permitted Issuances 10
Phase I 57
Phase II and III Work 58
Plan of Merger 1
Premises 38
Pricing Period 7
Proposal 46
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Table of Contents
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Page
Prospectus and Proxy Statement 20
Registration Statement 20
SEC 16
Securities Act 52
Series D Conversion Price 4
Stock Distribution 7
Stockholders' Meeting 49
Superior Proposal 50
Surviving Corporation 1
Tax Returns 30
Taxes 30
Technology-Related Contracts 45
Transaction Documents 20
Unexercised Options 13
Upset Condition 6
Voting Agreement 22
Year 2000 Assets 22
Year 2000 Ready 22
Exhibits
A -- Form of Stock Option Agreement A-1
B -- Form of Certificate of Designation of Old Kent
Preferred Stock B-1
C -- Index Companies C-1
D -- Form of Disclosure Statement D-1
E -- Schedule of Additional Information E-1
F -- Form of Grand Premier's Affiliate Agreement F-1
G -- Form of Grand Premier's Counsel's Legal Opinion G-1
H -- Form of Old Kent's Counsel's Legal Opinion H-1
I -- Designated Contracts I-1
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AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Plan of Merger") is made
as of September 9, 1999, between Grand Premier Financial, Inc., a
Delaware corporation ("Grand Premier"), Old Kent Financial
Corporation, a Michigan corporation ("Old Kent"), and OK Merger
Corporation, a Michigan corporation ("MergerSub").
Old Kent and Grand Premier desire that Grand Premier and its
subsidiaries become affiliated with Old Kent. The affiliation would be
effected through the merger of Grand Premier with and into MergerSub
in accordance with this Plan of Merger, the Business Corporation Act
of the State of Michigan, as amended (the "Michigan Act"), and the
Delaware General Corporation Law, as amended (the "DGCL"). The
transactions contemplated by, and described in, this Plan of Merger
are referred to as the "Merger."
Old Kent has formed MergerSub solely for the purpose of
effectuating the Merger. As soon as reasonably practicable following
the consummation of the Merger, Old Kent intends to cause MergerSub to
be liquidated and dissolved, and to cause Grand National Bank ("Grand
Premier Bank") and Grand Premier Trust and Investment, Inc., N.A.
("Grand Premier Trust Bank," and with Grand Premier Bank, the "Grand
Premier Banks"), to be consolidated with and into Old Kent's wholly
owned subsidiary, Old Kent Bank, a Michigan banking corporation.
It is intended that, for federal tax purposes, the Merger qualify
as a reorganization under the provisions of Section 368 of the
Internal Revenue Code of 1986, as amended (the "Internal Revenue
Code"). It is also intended that, for accounting and financial
reporting purposes, the Merger shall be accounted for as a
pooling-of-interests.
As a condition to, and concurrently with the execution of, this
Plan of Merger, Grand Premier and Old Kent are entering into a Stock
Option Agreement attached as EXHIBIT A (the "Option Agreement"). Grand
Premier's execution and delivery of the Option Agreement is an
inducement for Old Kent to enter into this Plan of Merger.
In consideration of the representations, warranties, and
covenants contained in this Plan of Merger, the parties agree:
ARTICLE I - THE TRANSACTION
Subject to the terms and conditions of this Plan of Merger, the
Merger shall be carried out in the following manner:
1.1 MERGER OF GRAND PREMIER WITH AND INTO MERGERSUB. At the
Effective Time, Grand Premier shall be merged with and into MergerSub.
Grand Premier and MergerSub are each sometimes referred to as a
"Constituent Corporation" prior to the Merger. At the Effective Time,
the Constituent Corporations shall become a single corporation, which
shall be MergerSub (the "Surviving Corporation"). The effect of the
Merger upon each of the Constituent Corporations and the Surviving
Corporation shall be as provided in Chapter Seven of the Michigan Act
and Section 252 of the DGCL with respect to the merger of domestic and
foreign corporations, where the surviving corporation will be subject
to the laws of the State of Michigan.
1.2 THE CLOSING. The "Closing" for the Merger shall be held at
the offices of Warner Norcross & Judd llp, 111 Lyon Street, N.W.,
Grand Rapids, Michigan, commencing at 11 a.m. on the earliest date
specified by either Old Kent or Grand Premier upon five Business Days'
(defined below) written notice after the last to occur of the
following events: (a) receipt of all consents and approvals of
government regulatory authorities, and the expiration of all related
statutory waiting periods, legally required to consummate the Merger;
and (b) adoption of this Plan of Merger by the holders of the common
stock, $0.01 par value per share, of Grand Premier ("Grand Premier
Common Stock"). Scheduling or commencing the Closing shall not,
however, constitute a waiver of the conditions precedent of either Old
Kent and MergerSub or Grand Premier as set forth in Articles VI and
VII, respectively. Notwithstanding the above: (a) the Closing shall
not be convened prior to March 15, 2000 without Old Kent's express
written consent, and (b) if Old Kent gives notice of a Closing to
occur prior to March 1, 2000, then such notice must be given at least
15 Business Days prior to the Closing. Upon completion of the Closing,
Grand Premier and MergerSub shall each execute and file the
certificate of merger as required by the Michigan Act and the DGCL to
effect the Merger (together, the "Certificates of Merger"). No party
shall take any action to revoke either or both of the Certificates of
Merger after their filing without the written consent of the other
party.
1.3 EFFECTIVE TIME OF THE MERGER. The Merger shall be
consummated following the Closing by filing on the date of the Closing
the Certificates of Merger in the manner required by law. The
"Effective Time" of the Merger shall be as of a time and Business Day
mutually agreed upon by the parties, and in the absence of such an
agreement, as of a time and Business Day to be selected by Old Kent,
and in either case, specified in the Certificates of Merger.
Notwithstanding the above, the Effective Time shall neither be (a)
earlier than March 17, 2000 without Old Kent's prior written consent
(which consent shall be evidenced by MergerSub's execution of the
Certificates of Merger), nor (b) later than five Business Days after
the Closing occurs. The term "Business Day" means any day other than a
Saturday, Sunday, or other day on which the New York Stock Exchange is
closed.
1.4 ADDITIONAL ACTIONS. At any time after the Effective Time,
the Surviving Corporation may determine that further assignments or
assurances or any other acts are necessary or desirable to vest,
perfect, or confirm, of record or otherwise, in the Surviving
Corporation its rights, title, or interest in, to, or under any of the
rights, properties, or assets of Grand Premier acquired or to be
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acquired by the Surviving Corporation as a result of, or in connection
with, the Merger, or to otherwise carry out the purposes of this Plan
of Merger. Grand Premier hereby grants to the Surviving Corporation an
irrevocable power of attorney to execute and deliver all such deeds,
assignments, and assurances and to do all acts necessary, proper, or
convenient to accomplish this purpose; PROVIDED that this irrevocable
power of attorney shall only be operative following the Effective
Time. The officers and directors of the Surviving Corporation shall be
fully authorized in the name of Grand Premier to take any and all such
actions contemplated by this Plan of Merger.
1.5 SURVIVING CORPORATION. As of the Effective Time, the
Surviving Corporation shall have the following attributes until they
are subsequently changed in the manner provided by law:
1.5.1 NAME. The name of the Surviving Corporation
shall be "OK Merger Corporation."
1.5.2 ARTICLES OF INCORPORATION. The articles of
incorporation of the Surviving Corporation shall be the amended
and restated articles of incorporation of MergerSub as in effect
immediately prior to the Effective Time, without change.
1.5.3 BYLAWS. The bylaws of the Surviving
Corporation shall be the bylaws of MergerSub as in effect
immediately prior to the Effective Time, without change.
1.5.4 DIRECTORS. The directors of the Surviving
Corporation shall be the same as the directors of MergerSub
immediately prior to the Effective Time.
1.5.5 OFFICERS. The officers of the Surviving
Corporation shall be the same as the officers of MergerSub
immediately prior to the Effective Time.
1.6 BANK CONSOLIDATION. Old Kent intends to consolidate the
Grand Premier Banks with and into Old Kent Bank resulting in a single
Michigan banking corporation, which shall be Old Kent Bank (the "Bank
Consolidation"), after the Effective Time. The Bank Consolidation will
be effected pursuant to a consolidation agreement (the "Bank
Consolidation Agreement"), in the form required by the Michigan
Banking Code of 1969, as amended (the "Michigan Banking Code"), the
National Bank Act, as amended (the "National Bank Act"), and by any
other applicable laws, containing terms and conditions, determined by
Old Kent, not inconsistent with this Plan of Merger. The Bank
Consolidation shall only occur if the Merger is consummated, and it
shall become effective immediately after the Effective Time or such
later time as may be determined by Old Kent. To obtain the necessary
regulatory approval for the Bank Consolidation to occur immediately
after the Effective Time, Grand Premier and the Grand Premier Banks
shall approve, adopt, execute, and deliver the Bank Consolidation
Agreement and take all other reasonable steps requested by Old Kent
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prior to the Effective Time to effect the Bank Consolidation; PROVIDED
that neither Grand Premier nor the Grand Premier Banks shall be
required to incur any material cost or take any irrevocable action in
connection with its obligations under this Section.
ARTICLE II - CONVERSION AND EXCHANGE OF SHARES
Subject to the terms and conditions of this Plan of Merger and as
a result of the Merger, all of the capital stock of Grand Premier
shall be converted as follows:
2.1 CONVERSION OF SHARES. As of the Effective Time:
2.1.1 CONVERSION OF GRAND PREMIER COMMON STOCK.
Except as provided in Article II, each share of Grand Premier
Common Stock outstanding immediately prior to the Effective Time
shall be converted into 0.4231 (the "Exchange Ratio") shares of
validly issued, fully paid, and nonassessable common stock, $1.00
par value per share, of Old Kent ("Old Kent Common Stock").
2.1.2 CONVERSION OF GRAND PREMIER SERIES B PREFERRED
STOCK. Each share of Grand Premier's Series B Perpetual
Preferred Stock, with no par value and with a stated value of
$1,000 per share, with a right of conversion into Grand Premier
Common Stock ("Grand Premier Series B Preferred Stock")
outstanding immediately prior to the Effective Time (other than
Dissenting Shares (as defined below)) shall be converted into
one share of Series D preferred stock of Old Kent, with no par
value and a stated value of $1,000 per share, with a right of
conversion into Old Kent Common Stock (the "Old Kent Series D
Preferred Stock"). Accrued but unpaid dividends on the Grand
Premier Series B Preferred Stock to the Effective Time shall
become accrued but unpaid dividends on Old Kent Series D
Preferred Stock. The terms of the Old Kent Series D Preferred
Stock shall be as specified in the Certificate of Designation,
Preferences and Rights of Series D Perpetual Preferred Stock
attached as EXHIBIT B, which terms are intended to be
substantially identical to the terms of the Grand Premier Series
B Preferred Stock, except that Old Kent Series D Preferred Stock
shall be convertible into Old Kent Common Stock at a price of
$18.2905 per share (the "Series D Conversion Price") of Old Kent
Common Stock. Old Kent shall, prior to the Closing, take all
measures legally required to create the class of Old Kent Series
D Preferred Stock and authorize the issuance of such shares.
2.1.3 CONVERSION OF GRAND PREMIER SERIES C PREFERRED
STOCK. Each share of Grand Premier's Series C Perpetual
Preferred Stock, par value $0.01 per share and with a stated
value of $1,000 per share (the "Grand Premier Series C Preferred
Stock," and with the Grand Premier Series B Preferred Stock,
referred to as the "Grand Premier Preferred Stock") outstanding
immediately prior to the Effective Time (other than Dissenting
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Shares) shall be converted into one share of Series E preferred
stock of Old Kent, with no par value and a stated value of $1,000
per share (the "Old Kent Series E Preferred Stock," and with the
Old Kent Series D Preferred Stock, referred to as the "Old Kent
Preferred Stock"). Accrued but unpaid dividends on the Grand
Premier Series C Preferred Stock to the Effective Time shall
become accrued but unpaid dividends on Old Kent Series E
Preferred Stock. The terms of the Old Kent Series E Preferred
Stock shall be as specified in the Certificate of Designation,
Preferences and Rights of Series E Perpetual Preferred Stock
attached as EXHIBIT B, which terms are intended to be
substantially identical to the terms of the Grand Premier Series
C Preferred Stock. Old Kent shall, prior to the Closing, take all
measures legally required to create the class of Old Kent Series
E Preferred Stock and authorize the issuance of such shares. The
Old Kent Common Stock and Old Kent Preferred Stock shall be
collectively referred to as the "Old Kent Capital Stock."
2.1.4 OLD KENT RIGHTS. Each share of Old Kent Common
Stock to be issued in the Merger shall have attached to it the
number of "Old Kent Rights" issuable pursuant to the "Old Kent
Rights Agreement" (as those terms are defined in Section 3.4.1
(CLASSES AND SHARES -- OLD KENT)) that are attached to each
issued and outstanding share of Old Kent Common Stock at the
Effective Time. No Old Kent Rights shall be attached to Old Kent
Common Stock if the Old Kent Rights are then separately
transferable.
2.1.5 NO CONVERSION OF OLD KENT COMMON STOCK. Each
share of Old Kent Common Stock and each Old Kent Right
outstanding immediately prior to the Effective Time shall
continue to be outstanding without any change.
2.1.6 CONVERSION OF MERGERSUB COMMON STOCK. Each share
of common stock, without par value, of MergerSub issued and
outstanding immediately prior to the Effective Time shall be
converted automatically into and become one fully paid and
nonassessable share of common stock, without par value, of the
Surviving Corporation. As a result of the Merger, Old Kent shall
own all of the issued and outstanding shares of the Surviving
Corporation.
2.1.7 STOCK HELD BY OLD KENT. Each share of Grand
Premier Common Stock and Grand Premier Preferred Stock
(collectively, "Grand Premier Capital Stock"), if any, held by
Old Kent or any of its subsidiaries for its own account, and not
in a fiduciary or representative capacity for a person other than
Old Kent or any of its subsidiaries, shall be canceled and no
consideration shall be issuable or payable with respect to any
such share.
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2.1.8 TREASURY SHARES. Each share of Grand Premier
Capital Stock held by Grand Premier as a treasury share
(excluding shares held in a fiduciary or representative capacity
under Grand Premier's benefit plans), if any, shall be canceled
and no Old Kent Common Stock or other consideration shall be
issuable or payable with respect to any such share.
2.1.9 DISSENTING SHARES. Any shares of Grand Premier
Preferred Stock held by a holder who shall not have voted the
shares in favor of this Plan of Merger and who shall be eligible
for and shall have complied with the applicable procedures of
Section 262 of the DGCL and who shall not have withdrawn his or
her demand for appraisal and accepted the Merger pursuant to
Section 262 of the DGCL ("Dissenting Shares") shall, at and after
the Effective Time, have the status of authorized but unissued
shares of the Surviving Corporation. Notwithstanding any other
provision of this Plan of Merger, any Dissenting Shares shall
not, after the Effective Time, be entitled to vote for any
purpose or receive any dividends or other distributions and shall
be entitled only to the rights as are afforded in respect of
Dissenting Shares pursuant to the DGCL.
2.2 UPSET PROVISION. Grand Premier shall have the right to
terminate this Plan of Merger by written notice to Old Kent at any
time following the Pricing Period, upon the occurrence of an "Upset
Condition."
2.2.1 UPSET CONDITION. An "Upset Condition" shall
exist if both of the following conditions then exist:
(a) The Final Old Kent Price (defined below) is
less than $33.46875 (the "Floor Old Kent Price"); and
(b) The number determined by dividing the Final
Old Kent Price by $39.375 (the "Initial Old Kent
Price") is less than the number obtained by subtracting
(i) 0.15 from (ii) the quotient obtained by dividing
the Final Index Price (defined below) by the Initial
Index Price (defined below).
2.2.2 POSSIBLE ADJUSTMENT OF THE EXCHANGE RATIO. If
Grand Premier gives written notice of termination of the Plan of
Merger pursuant to this Section 2.2, Grand Premier may, but
shall not be obligated to, proceed with the Merger, without any
further approval of the stockholders of Grand Premier, in the
event that Old Kent shall agree, within five Business Days of
receipt of such notice of termination, to adjust the Exchange
Ratio so that it exceeds the Exchange Ratio (as then in effect)
and such adjusted exchange ratio is approved by the board of
directors, or a duly authorized committee of the board of
directors, of Grand Premier.
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2.2.3 FINAL OLD KENT PRICE. The "Final Old Kent Price"
means the average of the closing prices per share of Old Kent
Common Stock reported on the New York Stock Exchange ("NYSE") for
the ten consecutive full trading days ending on the sixth
Business Day prior to the date of the Closing (the "Pricing
Period"), as reported in the DOW JONES NEWS/RETRIEVAL system, or
other equally reliable means.
2.2.4 INITIAL INDEX PRICE. The "Initial Index Price"
means the average of the closing prices per share of each of the
common stocks of the Index Companies (defined below) as reported
on NYSE, The Nasdaq Stock Market ("NASDAQ"), or the American
Stock Exchange ("AMEX") on September 9, 1999 ("Initial Index
Date"). The Initial Index Price computed as of a recent date is
presented in EXHIBIT C as an illustration of the method of
computation, but is subject to adjustment as provided in Sections
2.2.7 (INDEX ADJUSTMENTS).
2.2.5 FINAL INDEX PRICE. The "Final Index Price" means
the average of the average closing prices per share of each of
the common stocks of the Index Companies as reported on NYSE,
NASDAQ, or AMEX for each trading day during the Pricing Period.
2.2.6 INDEX COMPANIES. The term "Index Companies"
refers to the companies listed on EXHIBIT C, as the list may be
modified under Section 2.2.8 (INDEX EXCLUSIONS).
2.2.7 INDEX ADJUSTMENTS. If any Index Company declares
a stock dividend, stock split, or stock split-up (any such event
being a "Stock Distribution") of its common stock for which the
ex-dividend date, ex-split date, ex-distribution date or other
comparable date (the "Ex-Date") occurs between the Initial Index
Date and the end of the Pricing Period, then for purposes of the
definitions in Section 2.2 (UPSET PROVISION) the closing prices
for such common stock as of the Initial Index Date and each date
during the Pricing Period prior to the Ex-Date shall be adjusted
so as to be comparable as of the Initial Index Date and
throughout the Pricing Period in the same manner as is described
in Section 2.3.1(c) (STOCK DIVIDENDS AND DISTRIBUTIONS) for any
Stock Distribution.
2.2.8 INDEX EXCLUSIONS. There shall be excluded from
the list of Index Companies any company as to which, between the
Initial Index Date and the end the Pricing Period, there occurs
or there is publicly announced (a) a proposed merger,
acquisition, or business combination in which that company is not
or will not ultimately be the survivor, (b) a tender offer,
exchange offer, other transaction involving or proposing to
involve the acquisition of a majority of that company's common
stock or assets, or (c) a reclassification, recapitalization,
subdivision, spin-off, split-up, or combination of its common
stock; PROVIDED that if eight or more of the Index Companies are
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excluded pursuant to this Section, then, unless Old Kent and
Grand Premier agree otherwise, Old Kent and Grand Premier shall
agree upon mutually acceptable substitute Index Companies. If a
company is excluded from the list of Index Companies, then the
Initial Index Price and the Final Index Price shall be calculated
as if the excluded company had not originally been included in
the list of companies.
2.3 ADJUSTMENTS. The Exchange Ratio, Series D Conversion Price,
Floor Old Kent Price, Initial Old Kent Price, and Final Old Kent
Price, and the related computations described in Sections 2.1
(CONVERSION OF SHARES) and 2.2 (UPSET PROVISION) shall be adjusted in
the manner provided in this Section upon the occurrence of any of the
following events:
2.3.1 STOCK DIVIDENDS AND DISTRIBUTIONS. If Old Kent
declares a Stock Distribution of Old Kent Common Stock to its
holders prior to the Effective Time, then:
(a) If the record date for the Stock Distribution
occurs prior to the Effective Time, then the Exchange
Ratio shall be adjusted by multiplying it by that ratio
(the "Old Kent Adjustment Factor") (i) the numerator of
which shall be the total number of shares of Old Kent
Common Stock that are outstanding as of the record date
for such Stock Distribution plus the additional number
of shares to be issued in the Stock Distribution
computed as of that record date; and (ii) the
denominator of which shall be the total number of
shares of Old Kent Common Stock outstanding as of the
Stock Distribution's record date; and
(b) If the record date for the Stock Distribution
occurs prior to the Effective Time, then the Series D
Conversion Price shall be adjusted by dividing it by
the Old Kent Adjustment Factor.
(c) If the Ex-Date for the Stock Distribution
occurs before the end of the Pricing Period, then the
Floor Old Kent Price and the Initial Old Kent Price
(and if the Ex-Date occurs during the Pricing Period,
then the closing price per share of Old Kent Common
Stock for each day during the Pricing Period prior to
the Ex-Date) shall each be adjusted by dividing them by
the Old Kent Adjustment Factor.
2.3.2 OTHER ACTION AFFECTING OLD KENT COMMON STOCK. In
the event of a reclassification of outstanding shares of Old Kent
Common Stock or a consolidation or merger of Old Kent with or
into another corporation, other than a merger in which Old Kent
is ultimately the surviving corporation and which merger does not
result in any reclassification of Old Kent Common Stock, holders
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of Grand Premier Common Stock shall receive, in lieu of each
share of Old Kent Common Stock to be issued in exchange for Grand
Premier Common Stock based on the Exchange Ratio, the kind and
amount of shares of Old Kent stock, other securities, money,
and/or property receivable upon such reclassification,
consolidation, or merger by holders of Old Kent Common Stock with
respect to each share of Old Kent Common Stock outstanding
immediately prior to such reclassification, consolidation, or
merger.
2.3.3 EMPLOYEE STOCK OPTIONS, ETC. Notwithstanding
any other provisions of this Section, no adjustment shall be made
in the event of the issuance of additional shares of Old Kent
Common Stock pursuant to the dividend reinvestment plan of Old
Kent (the "Old Kent DRIP"), pursuant to the exercise of stock
options awarded under director or employee stock option plans of
Old Kent, or upon the grant or sale of shares or rights to
receive shares to, or for the account of, Old Kent directors or
employees pursuant to restricted stock, deferred stock
compensation, thrift, employee stock purchase, and other
compensation or benefit plans of Old Kent.
2.3.4 AUTHORIZED BUT UNISSUED SHARES. Notwithstanding
the other provisions of this Section, no adjustment shall be made
in the event of the issuance of additional shares of Old Kent
Common Stock or other securities pursuant to a public offering,
private placement, or an acquisition of one or more banks,
corporations, or business assets as authorized by the board of
directors of Old Kent or a duly authorized committee of the
board.
2.3.5 CHANGES IN CAPITAL. Subject only to making any
adjustment to the Exchange Ratio and related computations
prescribed by this Section, nothing contained in this Plan of
Merger shall preclude Old Kent from amending its restated
articles of incorporation to change its capital structure or from
issuing additional shares of Old Kent Common Stock, preferred
stock, shares of other capital stock, or securities that are
convertible into shares of capital stock.
2.4 INCREASE IN OUTSTANDING SHARES OF GRAND PREMIER COMMON
STOCK. If the number of shares of Grand Premier Common Stock
outstanding at the Effective Time is greater than 22,359,791 for any
reason whatsoever (whether or not such increase constitutes a breach
of this Plan of Merger) other than as a result of Permitted Issuances
(defined below), then:
2.4.1 EXCHANGE RATIO. The Exchange Ratio shall be
adjusted by multiplying it by a fraction (the "Grand Premier
Adjustment Factor") (i) the numerator of which shall be
22,359,791 (the total number of shares of Grand Premier Common
Stock outstanding as of the date of this Plan of Merger), and
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(ii) the denominator of which shall be the total number of shares
of Grand Premier Common Stock outstanding as of the Effective
Time of the Merger, excluding Permitted Issuances (as defined
below); and
2.4.2 SERIES D CONVERSION PRICE. The Series D
Conversion Price shall be adjusted by dividing it by the Grand
Premier Adjustment Factor.
"Permitted Issuances" include and are limited to: (i) the issuance of
not more than 357,406 shares of Grand Premier Common Stock upon the
exercise of previously awarded and currently outstanding stock options
identified in Section 4.4 (CAPITAL STOCK); (ii) the issuance of shares
upon the exercise of stock options awarded in December 1999 under the
Grand Premier Options Plans, which awards are consistent in amount,
nature, and timing with Grand Premier's past practices with respect to
awards made under the Grand Premier Option Plans (as defined below)
and in no event shall such awards exceed options to purchase 95,000
shares (in the aggregate); and (iii) the issuance of not more than
936,852 shares of common stock upon the conversion of Grand Premier
Series B Preferred Stock.
2.5 CESSATION OF STOCKHOLDER STATUS. As of the Effective Time,
each record holder of shares of Grand Premier Common Stock outstanding
immediately prior to the Effective Time shall cease to be a
stockholder of Grand Premier and shall have no rights as a stockholder
of Grand Premier. Each stock certificate representing shares of Grand
Premier Common Stock outstanding immediately prior to the Effective
Time ("Old Common Certificates") shall then be considered to represent
shares of Old Kent Common Stock and the right, if any, to receive cash
in lieu of fractional shares, all as provided in this Plan of Merger.
As of the Effective Time, except with respect to any Dissenting
Shares, each record holder of shares of Grand Premier Preferred Stock
outstanding immediately prior to the Effective Time shall cease to be
a stockholder of Grand Premier and shall have no rights as a
stockholder of Grand Premier, and each stock certificate representing
shares of Grand Premier Preferred Stock outstanding immediately prior
to the Effective Time ("Old Preferred Certificates") shall then be
considered to represent shares of the applicable Old Kent Preferred
Stock and the right, if any, to receive cash for any accrued but
unpaid dividends thereon, all as provided in this Plan of Merger.
2.6 SURRENDER OF OLD CERTIFICATES AND DISTRIBUTION OF STOCK.
After the Effective Time, Old Common Certificates shall be
exchangeable by the holders thereof for book entry shares registered
on Old Kent's stock transfer records ("Book Entry Shares") or new
stock certificates representing the number of shares of Old Kent
Common Stock to which such holders shall be entitled in the following
manner:
2.6.1 TRANSMITTAL MATERIALS. As soon as practicable,
but in no event later than ten Business Days after the Effective
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Time, Old Kent shall send or cause to be sent to each record
holder of Grand Premier Capital Stock as of the Effective Time
transmittal materials for use in exchanging that holder's Old
Common Certificates and Old Preferred Certificates pursuant to
the following. Old Common Certificates shall have the following
options: (a) enrolling in the Old Kent DRIP with credit for all
full and fractional shares received in the Merger; (b) receiving
Old Kent Common Stock certificates; and (c) receiving Book Entry
Shares (but without enrolling in the DRIP). The transmittal
materials will contain instructions with respect to the surrender
of Old Common Certificates and the selection of these exchange
options. In the absence of a selection among these exchange
options, the holder of Grand Premier Common Stock shall be deemed
to have elected to receive Book Entry Shares. Old Preferred
Certificates shall be exchanged for certificates of Old Kent
Preferred Stock.
2.6.2 EXCHANGE AGENT. On or prior to the Effective
Time, Old Kent will deliver to Old Kent Bank or such other bank
or trust company as Old Kent may designate (the "Exchange
Agent"), written notice of the number of shares of Old Kent
Capital Stock issuable in the Merger and a commitment to pay the
amount of cash payable for fractional shares in the Merger when
and as determined, and in the case of the conversion of the Grand
Premier Preferred Stock, a commitment to pay the amount of cash
payable for any accrued but unpaid dividends payable to holders
of record as of record dates prior to the Effective Time. The
Exchange Agent shall not be entitled to vote or exercise any
rights of ownership with respect to such shares of Old Kent
Capital Stock, except that it shall receive and hold all
dividends or other distributions paid or distributed with
respect to such shares for the account of the record holders
entitled to such shares.
2.6.3 NEW STOCK REGISTRATIONS. Old Kent shall cause
the Exchange Agent to promptly register the shares of Old Kent
Capital Stock issuable to Grand Premier's holders of record in
such manner, in the names, and to the addresses that appear on
Grand Premier's stock records as of the Effective Time, or in
such other name or to such other address as may be specified by
the holder of record in transmittal documents received by the
Exchange Agent; PROVIDED, that with respect to each Grand Premier
stockholder, the Exchange Agent shall have received all of the
Old Common Certificates and Old Preferred Certificates held by
that stockholder, or an affidavit of loss and indemnity bond for
such certificate or certificates, together with properly
executed transmittal materials; and such certificates,
transmittal materials, affidavits, and bonds are in a form and
condition reasonably acceptable to Old Kent and the Exchange
Agent.
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2.6.4 DIVIDENDS PENDING SURRENDER. Whenever a
dividend is declared by Old Kent on Old Kent Common Stock or Old
Kent Preferred Stock that is payable to shareholders of record of
Old Kent as of a record date on or after the Effective Time, the
declaration shall include dividends on all shares issuable under
this Plan of Merger. No former stockholder of Grand Premier shall
be entitled to receive a distribution of any such dividend until
the physical exchange of all of that stockholder's Old Common
Certificates and Old Preferred Certificates (or an affidavit of
loss and indemnity bond for such certificates) shall have been
effected pursuant to properly submitted transmittal materials.
Upon the physical exchange of that stockholder's Old Common
Certificates and Old Preferred Certificates (or an affidavit of
loss and indemnity bond for such certificates), the stockholder
shall be entitled to receive from Old Kent an amount equal to all
such dividends (without interest thereon and less the amount of
taxes, if any, that may have been imposed or paid thereon)
declared and paid with respect to the shares of Old Kent Capital
Stock represented thereby. If such stockholder elects to enroll
in the Old Kent DRIP, such amount shall be credited as a cash
purchase for investment at the plan's next regular investment
date.
2.6.5 STOCK TRANSFERS. After the Effective Time,
there shall be no transfers on Grand Premier's stock transfer
books of the shares of Grand Premier Capital Stock that were
issued and outstanding immediately prior to the Effective Time.
If, after the Effective Time, Old Common Certificates and Old
Preferred Certificates are properly presented for transfer, then
they shall be canceled and exchanged for shares of Old Kent
Capital Stock as provided in this Plan of Merger. After the
Effective Time, ownership of such shares as are represented by
any Old Common Certificates and Old Preferred Certificates may
be transferred only on the stock transfer records of Old Kent.
2.6.6 EXCHANGE AGENT'S DISCRETION. The Exchange Agent
shall have discretion to determine and apply reasonable rules and
procedures relating to the exchange (or lack thereof) of Old
Common Certificates and Old Preferred Certificates and the
registration of the shares of Old Kent Capital Stock into which
shares of Grand Premier Capital Stock are converted in the Merger
and governing the payment for fractional shares of Grand Premier
Capital Stock.
2.7 NO FRACTIONAL SHARES. Notwithstanding any other provision of
this Article II, no certificates or scrip representing fractional
shares of Old Kent Capital Stock shall be issued in the Merger upon
the surrender of Old Common Certificates or Old Preferred
Certificates. No fractional interest in any share of Old Kent Common
Stock resulting from the Merger shall be entitled to any part of a
Stock Distribution with respect to shares of Old Kent Common Stock nor
entitle the record holder to vote or exercise any rights of a
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stockholder with respect to that fractional interest. In lieu of
issuing any fractional share, each holder of an Old Common Certificate
who would otherwise have been entitled to a fractional share of Old
Kent Common Stock upon surrender of all Old Common Certificates for
exchange shall be paid an amount in cash (without interest) equal to
such fraction of a share multiplied by the Final Old Kent Price. If
the holder of record elects to enroll in Old Kent's DRIP, then the
cash in lieu of fractional shares shall be held for reinvestment at
the plan's next regular investment date.
2.8 STOCK OPTIONS.
2.8.1 CONVERSION OF OPTIONS. Each unexercised stock
option ("Unexercised Options") under the Grand Premier Financial,
Inc. 1996 Non-Qualified Stock Option Plan, the Premier Financial
Services, Inc. 1995 Non-Qualified Stock Option Plan, the Premier
Financial Services, Inc. 1988 Non-Qualified Stock Option Plan,
and the 1998 Grand Premier Financial, Inc. Non-Employee Director
Stock Option Plan (collectively, the "Grand Premier Option
Plans") outstanding at the Effective Time shall become, at the
Effective Time, an option to purchase that number of shares of
Old Kent Common Stock equal to the number of shares of Grand
Premier Common Stock subject to such Unexercised Option
multiplied by the Exchange Ratio, rounded to the nearest whole
share. Old Kent acknowledges and agrees that, pursuant to the
terms of the Grand Premier Financial, Inc. 1996 Non-Qualified
Stock Option Plan, the Premier Financial Services, Inc. 1995
Non-Qualified Stock Option Plan, and the 1998 Grand Premier
Financial, Inc. Non-Employee Director Stock Option Plan and
related agreements, all of the Unexercised Options outstanding as
of the Effective Time under such plans shall become fully vested
and exercisable at the Effective Time.
2.8.2 OPTION EXERCISES. The exercise price per share
of Old Kent Common Stock under each Unexercised Option shall be
equal to the exercise price per share of the Grand Premier Common
Stock that was purchasable under that option divided by the
Exchange Ratio (rounded to the nearest whole cent).
2.8.3 OPTION PLANS ASSUMPTION. As of the Effective
Time of the Merger, Old Kent shall assume the rights, duties and
obligations of Grand Premier under the Grand Premier Option
Plans, as amended by this Plan of Merger. The duration and other
terms and conditions of the assumed options shall be the same as
the original Grand Premier options, except that any reference to
Grand Premier shall be considered to be references to Old Kent.
In no event shall any subsequent merger or amendment of the Grand
Premier Option Plans adversely affect the terms, rights,
benefits, and features of the Unexercised Options without the
consent of the holders thereof.
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2.8.4 REGISTRATION. Old Kent shall use all
commercially reasonable efforts to file before or promptly after
the Effective Time, and use all commercially reasonable efforts
to maintain the effectiveness of, a registration statement with
the SEC covering such options and the sale of the Old Kent Common
Stock issuable upon exercise of such options so long as
unexercised options remain outstanding.
2.8.5 NO NEW OPTIONS. At the Effective Time, the Grand
Premier Option Plans shall be terminated with respect to the
granting of any additional options or option rights.
2.8.6 NO CASH SURRENDER. In no event and at no time
shall Grand Premier (including its board of directors or any
committee thereof): (a) permit or allow the holder of any
outstanding Unexercised Options pursuant to the Grand Premier
Option Plans to receive cash in exchange for the cancellation of
any Unexercised Option; or (b) exercise any right of first
refusal granted to it under the Grand Premier Option Plans to
purchase Grand Premier Common Stock.
2.9 APPROVAL OF GRAND PREMIER SERIES C PREFERRED STOCK. If,
notwithstanding any agreement between Old Kent and a holder of shares
of Grand Premier Series C Preferred Stock, the holders of a majority
of shares of Grand Premier Series C Preferred Stock duly approve the
right to the cash payment set forth in Section 4.3.5 of Grand
Premier's amended and restated certificate of incorporation, then
Grand Premier shall promptly notify Old Kent of such action and Old
Kent shall have the right to terminate this Plan of Merger for a
period of 20 Business Days after Old Kent receives written notice of
such approval.
ARTICLE III - OLD KENT'S REPRESENTATIONS AND WARRANTIES
Old Kent represents and warrants to Grand Premier that, except as
otherwise set forth in the disclosure statement previously furnished
to Grand Premier by Old Kent (the "Old Kent Disclosure Statement"):
3.1 AUTHORIZATION, NO CONFLICTS, ETC.
3.1.1 AUTHORIZATION OF AGREEMENT. Each of Old Kent
and MergerSub has the requisite corporate power and authority to
execute and deliver this Plan of Merger and to consummate the
Merger. This Plan of Merger has been duly approved and adopted
and the consummation of the Merger has been duly authorized by
the boards of directors of Old Kent and MergerSub and the sole
shareholder of MergerSub and no other corporate proceedings on
the part of Old Kent or MergerSub are necessary to authorize this
Plan of Merger or to consummate the Merger. This Plan of Merger
has been duly executed and delivered by, and constitutes valid
and binding obligations of, Old Kent and MergerSub and is
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enforceable against Old Kent and MergerSub in accordance with its
terms.
3.1.2 NO CONFLICT, BREACH, VIOLATION, ETC. The
execution, delivery, and performance of this Plan of Merger by
Old Kent and MergerSub, and the consummation of the Merger by Old
Kent and MergerSub, do not and will not violate, conflict with,
or result in a breach of: (a) any provision of the articles of
incorporation of Old Kent (as amended and restated) or MergerSub
or the bylaws of Old Kent or MergerSub; or (b) any statute, code,
ordinance, rule, regulation, judgment, order, writ, memorandum of
understanding, arbitral award, decree, or injunction applicable
to Old Kent or its subsidiaries, assuming the timely receipt of
each of the approvals referred to in Section 3.1.4 (REQUIRED
APPROVALS).
3.1.3 REGULATORY RESTRICTIONS. The execution,
delivery, and performance of this Plan of Merger by Old Kent and
MergerSub, and the consummation of the Merger by Old Kent and
MergerSub, do not and will not violate, conflict with, result in
a breach of, constitute a default under, or require any consent,
approval, waiver, extension, amendment, authorization, notice, or
filing under, any memorandum of understanding or similar
regulatory consent agreement to which Old Kent is a party or
subject, or by which it is bound or affected.
3.1.4 REQUIRED APPROVALS. No notice to, filing with,
authorization of, exemption by, or consent or approval of, any
public body or authority is necessary for the consummation of the
Merger by Old Kent and MergerSub other than in connection or
compliance with the provisions of the Michigan Act and the DGCL,
compliance with federal and state securities laws, bylaws and
rules of the NYSE, and the approvals required under the Bank
Holding Company Act of 1956, as amended (the "Federal Bank
Holding Company Act"), the Federal Deposit Insurance Act, as
amended (the "FDIA"), the Michigan Banking Code, and the National
Bank Act.
3.2 ORGANIZATION AND GOOD STANDING. Each of Old Kent and
MergerSub is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Michigan. Old Kent
possesses all requisite corporate power and authority to own, operate,
and lease its properties and to carry on its business as it is now
being conducted in all material respects. Old Kent is a bank holding
company duly registered as such with the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board") under the Federal
Bank Holding Company Act. Old Kent is qualified or admitted to conduct
business as a foreign corporation in each state in which the failure
to be so qualified or admitted is reasonably likely to have a Material
Adverse Effect on Old Kent.
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3.3 Subsidiaries. Old Kent owns all of the issued and
outstanding shares of capital stock of Old Kent Bank and MergerSub
free and clear of all claims, security interests, pledges, or liens of
any kind. Old Kent Bank is duly organized, validly existing, and in
good standing as a banking corporation under the laws of the State of
Michigan.
3.4 CAPITAL STOCK.
3.4.1 CLASSES AND SHARES--OLD KENT. The authorized
capital stock of Old Kent consists of 325,000,000 shares divided
into two classes as follows: (a) 300,000,000 shares of Old Kent
Common Stock, of which, as of September 3, 1999, a total of
118,216,968 shares were validly issued and outstanding; and (b)
25,000,000 shares of preferred stock, without par value, of which
3,000,000 shares are designated Series A Preferred Stock, 500,000
shares are designated Series B Preferred Stock, and 1,000,000
shares are designated Series C Preferred Stock, none of which
preferred stock was issued and outstanding as of the date of this
Plan of Merger. The 1,000,000 shares of Series C Preferred Stock
are reserved for issuance pursuant to Series C Preferred Stock
Purchase Rights (the "Old Kent Rights") governed by a Rights
Agreement, dated as of January 20, 1997, as amended, between Old
Kent and Old Kent Bank (the "Old Kent Rights Agreement").
3.4.2 NO OTHER CAPITAL STOCK. As of the date of the
Plan of Merger: (a) other than Old Kent Common Stock, there is no
security or class of securities issued and outstanding that
represents or is convertible into capital stock of Old Kent; and
(b) there is no outstanding subscription, option, warrant, or
right to acquire any capital stock of Old Kent, or agreement to
which Old Kent is a party or by which it is bound to issue
capital stock, except as set forth in, or as contemplated by,
this Plan of Merger, and except (i) the Old Kent Rights (which as
of the date of this Plan of Merger were represented by and
transferable only with shares of Old Kent Common Stock); (ii)
stock options awarded pursuant to Old Kent employee and director
stock option plans; (iii) provisions for the grant or sale of
shares or the right to receive shares to, or for the account of,
employees and directors pursuant to restricted stock, deferred
stock compensation, stock purchase and other benefit plans; (iv)
shares of Old Kent Common Stock issuable under agreements entered
into in connection with mergers or acquisitions of direct or
indirect subsidiaries or assets in transactions approved by the
Old Kent board of directors or a committee of such board, all of
which have been previously disclosed in Old Kent's filings with
the Securities and Exchange Commission (the "SEC"); and (v)
shares of Old Kent Common Stock issuable under Old Kent's DRIP
and employee stock purchase plans.
3.4.3 ISSUANCE OF SHARES. Between September 3, 1999,
and the date of this Plan of Merger, no additional shares of
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capital stock have been issued or authorized for issuance by Old
Kent, except as described in this Plan of Merger, and except for
shares issued or issuable pursuant to (a) the exercise of
employee stock options under employee stock option plans; (b) the
grant or sale of shares to, or for the account of, employees and
directors pursuant to restricted stock, deferred stock
compensation, stock purchase or other benefit plans; and (c) Old
Kent's DRIP and employee stock purchase plans.
3.4.4 VOTING RIGHTS. Neither Old Kent nor any of its
subsidiaries (other than MergerSub) has outstanding any security
or issue of securities the holder or holders of which have the
right to vote on the approval of the Merger or this Plan of
Merger, or that entitle the holder or holders to consent to, or
withhold consent on, the Merger or this Plan of Merger.
3.4.5 CLASSES AND SHARES - MERGERSUB. The authorized
capital stock of MergerSub consists of 60,000 shares of common
stock, without par value, of which, as of the date of this Plan
of Merger, a total of 1,000 shares were validly issued and
outstanding.
3.5 OLD KENT CAPITAL STOCK. The shares of Old Kent Capital
Stock to be issued in the Merger in accordance with this Plan of
Merger have been duly authorized and reserved and, when issued as
contemplated by this Plan of Merger, will be validly issued, fully
paid, and nonassessable shares.
3.6 FINANCIAL STATEMENTS.
3.6.1 FINANCIAL STATEMENTS. The consolidated financial
statements of Old Kent and its subsidiaries as of and for each of
the three years ended December 31, 1996, 1997, and 1998, as
reported on by Old Kent's independent accountants, and the
unaudited consolidated financial statements of Old Kent and its
subsidiaries as of and for the quarters ended March 31, 1999 and
June 30, 1999, including all schedules and notes relating to such
statements (collectively, "Old Kent's Financial Statements"),
fairly present, and the unaudited consolidated financial
statements of Old Kent and its subsidiaries as of and for each
quarter ending after the date of this Plan of Merger until the
Effective Time, including all schedules and notes relating to
such statements, will fairly present, the financial condition and
the results of operations, changes in shareholders' equity, and
cash flows of Old Kent as of the respective dates of and for the
periods referred to in such financial statements, all in
accordance with generally accepted United States accounting
principles ("GAAP") consistently applied, subject, in the case of
unaudited interim financial statements, to normal, recurring
year-end adjustments (the effect of which would not, individually
or in the aggregate, have a Material Adverse Effect on Old Kent)
and the absence of notes (that, if presented, would not differ
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materially from those included in Old Kent's Financial
Statements).
3.6.2 CALL REPORTS. The following reports (including
all related schedules, notes, and exhibits) were prepared and
filed in conformity with applicable regulatory requirements and
were correct and complete in all material respects when filed:
(a) The consolidated reports of condition and
income of Old Kent Bank (including any amendments) as
of and for each of the years ended December 31, 1996,
1997, and 1998, as filed with the Federal Deposit
Insurance Corporation ("FDIC"); and
(b) The FR Y-9 and FR Y-6 (including amendments)
for Old Kent as of and for each of the years ended
December 31, 1996, 1997, and 1998, as filed with the
Federal Reserve Board.
All of such reports required to be filed prior to the Closing by
Old Kent and/or Old Kent Bank will be prepared and filed in
conformity with applicable regulatory requirements applied
consistently throughout their respective periods (except as
otherwise noted in such reports) and will be correct and complete
in all material respects when filed.
3.7 ABSENCE OF UNDISCLOSED LIABILITIES. Except as and to the
extent reflected or reserved against in Old Kent's Financial
Statements as of December 31, 1998, as of such date, neither Old Kent
nor any of its subsidiaries had liabilities or obligations, secured or
unsecured (whether accrued, absolute, or contingent) as to which there
is a reasonable probability that they could have a Material Adverse
Effect on Old Kent.
3.8 ABSENCE OF MATERIAL ADVERSE CHANGE. Since December 31,
1998, there has been no change in the financial condition, income,
expenses, assets, liabilities or business of Old Kent and its
subsidiaries that had or in the future is reasonably likely to have a
Material Adverse Effect on Old Kent, other than such changes that are
caused by events and circumstances generally affecting the banking
industry as a whole. No facts or circumstances have been discovered
from which it reasonably appears that there is a reasonable
probability that there will occur a change that is reasonably likely
to have a Material Adverse Effect on Old Kent, other than such changes
that are caused by events and circumstances generally affecting the
banking industry as a whole.
3.9 ABSENCE OF LITIGATION. Except to the extent disclosed in
Old Kent's filings with the SEC, there is no action, suit, proceeding,
claim, arbitration, or investigation pending or, to Old Kent's
knowledge, threatened by any person, including without limitation any
governmental or regulatory agency, against Old Kent or any of its
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subsidiaries, or the assets or business of Old Kent or any of its
subsidiaries, any of which has had or is reasonably likely to have a
Material Adverse Effect on Old Kent. To the knowledge of Old Kent,
there is no factual basis that presents a reasonable potential for any
such action, suit, proceeding, claim, arbitration, or investigation.
3.10 CONDUCT OF BUSINESS. Old Kent and each of Old Kent's
subsidiaries have conducted their respective businesses and used their
respective properties in substantial compliance with all federal,
state, and local laws, civil or common, ordinances and regulations,
including without limitation applicable federal and state laws and
regulations concerning banking, securities, truth-in-lending,
truth-in-savings, mortgage origination and servicing, usury, fair
credit reporting, consumer protection, occupational safety, civil
rights, employee protection, fair employment practices, fair labor
standards, insurance, and Environmental Laws (as defined in Section
4.24.2 (ENVIRONMENTAL LAWS)), except for such violations that,
individually or in the aggregate, would not have a Material Adverse
Effect on Old Kent.
3.11 MATERIAL CONTRACTS. Neither Old Kent nor any of its
subsidiaries is a party to any agreement, contract, loan, mortgage,
deed of trust, lease, commitment, indenture, note, or other instrument
under which (a) a consent or approval is required, (b) a prohibited
assignment by operation of law could occur, (c) a waiver or loss of
any right could occur or (d) acceleration of any obligation could
occur, in each case as a result of the execution and delivery of this
Plan of Merger or the performance of the transactions contemplated by
this Plan of Merger, where (w) the failure to obtain such consent or
approval, (x) the violation of the prohibition against assignment, (y)
the waiver or loss of any right, or (z) the acceleration of any
obligation would have a Material Adverse Effect on Old Kent.
3.12 REGULATORY FILINGS. In the last three years:
3.12.1 SEC FILINGS. Old Kent has filed, and will in
the future continue to file, in a timely manner all required
filings with the SEC, including without limitation all reports on
Form 10-K and Form 10-Q;
3.12.2 REGULATORY FILINGS. Old Kent has filed in a
timely manner all other material filings with other regulatory
bodies for which filings are required; and
3.12.3 COMPLETE AND ACCURATE. All such filings, as of
their respective filing dates, did not contain any untrue
statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
3.13 REGISTRATION STATEMENT, ETC.
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3.13.1 "TRANSACTION DOCUMENTS." The term "Transaction
Documents" shall collectively mean: (i) the registration
statement to be filed by Old Kent with the SEC (the "Registration
Statement") in connection with the Old Kent Common Stock to be
issued in the Merger; (ii) the prospectus and proxy statement
(the "Prospectus and Proxy Statement") to be mailed to Grand
Premier stockholders in connection with the Stockholders' Meeting
(defined below); and (iii) any other documents to be filed with
the SEC, the Federal Reserve Board, the Michigan Financial
Institutions Bureau ("FIB"), the Comptroller of the Currency
("OCC"), the states of Michigan or Delaware, or any other
regulatory agency in connection with the Merger.
3.13.2 ACCURATE INFORMATION. The information to be
supplied by Old Kent for inclusion or incorporation by reference
in any Transaction Document will not contain any untrue statement
of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading (a) at the respective times such Transaction Documents
are filed; (b) with respect to the Registration Statement, when
it becomes effective; and (c) with respect to the Prospectus and
Proxy Statement, when it is mailed and at the time of the
Stockholders' Meeting.
3.13.3 COMPLIANCE OF FILINGS. All documents that Old
Kent is responsible for filing with the SEC or any regulatory
agency in connection with the Merger will comply as t form in all
material respects with the provisions of applicable law and
regulation.
3.14 INVESTMENT BANKERS AND BROKERS. Old Kent has not employed
any broker, finder, or investment banker in connection with the
Merger. Old Kent has no express or implied agreement with any other
person or company relative to any commission or finder's fee payable
with respect to this Plan of Merger or the transactions contemplated
by it.
3.15 ACCOUNTING AND TAX TREATMENT. Neither Old Kent nor, to its
knowledge, any of its affiliates, has taken or agreed to take any
action or knows of any reason that, with respect to Old Kent and its
affiliates, would prevent Old Kent from accounting for the business
combination to be effected by the Merger as a pooling-of-interests.
Old Kent has no knowledge of any reason why the Merger would fail to
qualify as a reorganization under Section 368(a) of the Internal
Revenue Code.
3.16 AGREEMENTS WITH BANK REGULATORS. Neither Old Kent nor any
of Old Kent's subsidiaries is a party to any agreement or memorandum
of understanding with, or a party to any commitment letter, board
resolution or similar undertaking to, or is subject to any order or
directive by, or is a recipient of any extraordinary supervisory
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letter from, any governmental authority that restricts materially the
conduct of its business, or in any manner relates to its capital
adequacy, its credit or reserve policies or its management, nor has
Old Kent been advised by any governmental authority that it is
contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, decree,
agreement, memorandum of understanding, extraordinary supervisory
letter, commitment letter or similar submission. As of the date of
this Plan of Merger, Old Kent knows of no reason why the regulatory
approvals referred to in Sections 3.1.4 and 4.1.4 (REQUIRED APPROVALS)
cannot be obtained or why the process would be materially impeded.
3.17 RESERVE FOR LOAN LOSSES. The reserve for credit losses as
reflected in Old Kent's Financial Statements as of December 31, 1998
was (a) adequate in the reasonable opinion of management to meet all
reasonably anticipated credit losses, net of recoveries related to
assets previously charged off as of that date, and (b) consistent with
GAAP and safe and sound banking practices.
3.18 YEAR 2000 COMPLIANCE. Old Kent has adopted and is
implementing plans and procedures consistent with applicable
regulatory requirements and guidelines and good business practices so
that its Year 2000 Assets (defined below) are and will be timely
modified, upgraded or replaced to become Year 2000 Ready (defined
below) in all material respects by September 30, 1999.
3.18.1 COMPLIANCE COSTS. The remaining cost and
process of achieving Year 2000 readiness for any Year 2000 Assets
that are not Year 2000 Ready do not, and will not, constitute a
Material Adverse Effect with respect to Old Kent.
3.18.2 REGULATORY COMPLIANCE. Old Kent and its
banking subsidiaries are in material compliance with the
requirements, guidelines, and schedule contained in the Federal
Financial Institutions Examination Council's statements dated May
5, 1997, "YEAR 2000 PROJECT MANAGEMENT AWARENESS," and December
17, 1997, "SAFETY AND SOUNDNESS GUIDELINES CONCERNING THE YEAR
2000 BUSINESS RISK," and dated October 15, 1998, "INTERAGENCY
GUIDELINES ESTABLISHING YEAR 2000 STANDARDS FOR SAFETY AND
SOUNDNESS," to the extent applicable. Neither Old Kent nor its
subsidiaries have received any Year 2000 deficiency notification
letter from any regulator having jurisdiction pertaining to Year
2000 readiness.
3.18.3 COMPATIBILITY. Old Kent makes no
representation relating to the compatibility of the technology
used by Old Kent or any of its subsidiaries with that used by
Grand Premier or with respect to the cost of integrating the
technology of Grand Premier or any of its subsidiaries with that
used by Old Kent.
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3.18.4 DEFINITIONS. "Year 2000 Assets" means all
buildings, physical plants, structures, machinery, equipment,
software, hardware, computer systems and other property owned,
leased, licensed or used by either Old Kent or Grand Premier, as
applicable, or their respective subsidiaries, which individually
or taken together, are material to the ordinary conduct of their
respective lines of business, services, or operations. "Year 2000
Ready" means that the Year 2000 Asset accurately processes and
handles date and time data, including but not limited to
performing all leap year calculations and calculating, comparing
and sequencing during and between the years 1999 and 2000 and all
other years, and will not malfunction, cease to function or
provide invalid or incorrect results or data as a result of date
or time data, including when a Year 2000 Asset is used in
combination with or is interfacing with any other Year 2000 Asset
or with any other asset or information technology to the extent
that it is within its control.
ARTICLE IV - GRAND PREMIER'S REPRESENTATIONS AND WARRANTIES
Grand Premier represents and warrants to Old Kent that, except as
otherwise set forth in the disclosure statement previously furnished
to Old Kent by Grand Premier (the "Grand Premier Disclosure
Statement"):
4.1 AUTHORIZATION, NO CONFLICTS, ETC.
4.1.1 AUTHORIZATION OF AGREEMENT. Grand Premier has
the requisite corporate power and authority to execute and
deliver this Plan of Merger and, subject to adoption by Grand
Premier's stockholders, to consummate the Merger. This Plan of
Merger has been duly adopted and the consummation of the Merger
have been duly authorized by the board of directors of Grand
Premier and no other corporate proceedings on the part of Grand
Premier are necessary to authorize this Plan of Merger or to
consummate the Merger, subject only to adoption by the holders of
Grand Premier Common Stock. This Plan of Merger has been duly
executed and delivered by, and constitutes valid and binding
obligations of, Grand Premier and is enforceable against Grand
Premier in accordance with its terms.
4.1.2 NO CONFLICT, BREACH, VIOLATION, ETC. The
execution, delivery, and performance of this Plan of Merger by
Grand Premier and a certain voting agreement, dated as of the
same date as this Plan of Merger, among Old Kent and certain
stockholders of Grand Premier (the "Voting Agreement") by such
stockholders, and the consummation of the Merger, do not and will
not violate, conflict with, or result in a breach of any
provision of: (a) Grand Premier's amended and restated
certificate of incorporation or by-laws or any of Grand Premier's
subsidiaries' certificate of incorporation, articles of
association, by-laws, or similar organizational documents; or (b)
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any statute, code, ordinance, rule, regulation, judgment, order,
writ, memorandum of understanding, arbitral award, decree, or
injunction applicable to Grand Premier or any of its
subsidiaries, assuming the timely receipt of each of the
approvals referred to in Section 4.1.4 (REQUIRED APPROVALS). The
board of directors of Grand Premier has approved the transactions
contemplated by this Plan of Merger, the Voting Agreement, and
the Option Agreement such that provisions of Section 203 of the
DGCL will not apply to this Plan of Merger, the Voting Agreement,
or the Option Agreement or any of the transactions contemplated
hereby or thereby.
4.1.3 REGULATORY RESTRICTIONS. The execution,
delivery, and performance of this Plan of Merger by Grand Premier
and the Voting Agreement by the Stockholders, and the
consummation of the Merger, do not and will not violate, conflict
with, result in a breach of, constitute a default under, or
require any consent, approval, waiver, extension, amendment,
authorization, notice, or filing under, any memorandum of
understanding or similar regulatory consent agreement to which
Grand Premier or any of its subsidiaries is a party or subject,
or by which it is bound or affected.
4.1.4 REQUIRED APPROVALS. No notice to, filing with,
authorization of, exemption by, or consent or approval of, any
public body or authority is necessary for the consummation of the
Merger by Grand Premier other than in connection or compliance
with the provisions of the Michigan Act and DGCL, compliance with
federal and state securities laws, and the consents,
authorizations, approvals, or exemptions required under the
Federal Bank Holding Company Act, the FDIA, and the Michigan
Banking Code.
4.2 ORGANIZATION AND GOOD STANDING. Grand Premier is a
corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware. Grand Premier possesses all
requisite corporate power and authority to own, operate, and lease its
properties and to carry on its business as it is now being conducted
in all material respects. Grand Premier is a bank holding company duly
registered as such with the Federal Reserve Board under the Federal
Bank Holding Company Act. Grand Premier is duly qualified and in good
standing as a foreign corporation in the State of Illinois. Grand
Premier is not, and is not required to be, qualified or admitted to
conduct business as a foreign corporation in any other state, except
where the failure to be so qualified or admitted would not have a
Material Adverse Effect on Grand Premier.
4.3 SUBSIDIARIES.
4.3.1 OWNERSHIP. Grand Premier owns all of the issued
and outstanding shares of capital stock of each of its
subsidiaries, free and clear of any claim, security interest,
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pledge, or lien of any kind. Each of Grand Premier Bank and Grand
Premier Trust Bank is duly organized, validly existing, and in
good standing as a national banking association under the laws of
the United States of America. Each of Grand Premier's other
subsidiaries (as listed in the Grand Premier Disclosure
Statement) is duly incorporated or formed as a limited liability
company, validly existing, and in good standing in its state of
incorporation or formation. Grand Premier does not have "Control"
(as defined in Section 2(a)(2) of the Federal Bank Holding
Company Act, using 5 percent rather than 25 percent), either
directly or indirectly, of any corporation, general or limited
partnership, limited liability company, trust or other person
engaged in an active trade or business or that holds any
significant assets other than as disclosed in the Grand Premier
Disclosure Statement.
4.3.2 RIGHTS TO CAPITAL STOCK. There is no legally
binding and enforceable subscription, option, warrant, right to
acquire, or any other similar agreement relating to the
acquisition of any of the capital stock of any of Grand
Premier's subsidiaries.
4.3.3 QUALIFICATION AND POWER. Each of Grand
Premier's subsidiaries is qualified or admitted to conduct
business in each state where such qualification or admission is
required except those states where the failure to be so qualified
or admitted would not have a Material Adverse Effect on Grand
Premier. Each of Grand Premier's subsidiaries has full corporate
power and authority to carry on its business as and where now
being conducted.
4.3.4 DEPOSIT INSURANCE; OTHER ASSESSMENTS. Each of
the Grand Premier Banks maintains in full force and effect
deposit insurance through the Bank Insurance Fund of the FDIC.
Neither of the Grand Premier Banks nor their predecessors have
previously consummated a deposit insurance conversion transaction
or a so-called "Oakar" deposit insurance transaction involving a
depository institution whose deposits were insured through the
Savings Association Insurance Fund. Each of the Grand Premier
Banks has fully paid to the FDIC as and when due all assessments
with respect to its deposits as are required to maintain such
deposit insurance in full force and effect. Each of the Grand
Premier Banks has paid as and when due all material fees,
charges, and assessments to each and every governmental or
regulatory agency having jurisdiction as required by law,
regulation, or rule.
4.3.5 NO ACQUISITION OR MERGER RESTRICTIONS. Each of
the Grand Premier Banks qualifies under the Illinois banking laws
and regulations to be acquired by an out of state bank holding
company, and, immediately thereafter, to be merged or
consolidated with and into an out of state bank.
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4.4 CAPITAL STOCK.
4.4.1 CLASSES AND SHARES. The authorized capital
stock of Grand Premier consists of 32,000,000 shares divided into
two classes as follows: (a) 30,000,000 shares of common stock,
$0.01 par value per share, of which, as of the date of this Plan
of Merger, a total of 22,359,791 shares were validly issued and
outstanding, no shares were held as treasury shares, and 357,406
shares were subject to outstanding options as of the date of this
Plan of Merger; and (b) 2,000,000 shares of preferred stock,
$0.01 par value per share, of which (i) 7,250 shares were
designated and are issued and outstanding as Grand Premier Series
B Preferred Stock, (ii) 2,000 shares were designated and are
issued and outstanding as Grand Premier Series C Preferred Stock,
and (iii) 300,000 shares were designated Series I Junior
Participating Preferred Stock, none of which were issued and
outstanding as of the date of this Plan of Merger. All dividends
payable to the holders of Grand Premier Preferred Stock have been
paid in full. Each share of Grand Premier Series B Preferred
Stock is convertible into 129.22 shares of Grand Premier Common
Stock. The 300,000 shares of Series I Junior Participating
Preferred Stock are reserved for issuance pursuant to the
exercise of preferred stock purchase rights (the "Grand Premier
Rights") governed by a Rights Agreement, dated as of July 8,
1996, between Grand Premier and Grand Premier Trust Bank (the
"Grand Premier Rights Agreement").
4.4.2 NO OTHER CAPITAL STOCK. Except for the Option
Agreement, the Grand Premier Rights Agreement, the Grand Premier
Series B Preferred Stock, and the outstanding options under the
Grand Premier Option Plans, there is no security or class of
securities authorized or issued that represents or is convertible
into Grand Premier Capital Stock. Except for the Option
Agreement, the outstanding options under the Grand Premier Option
Plans, the Grand Premier Rights Agreement, and Grand Premier
Savings and Stock Plan (the "Grand Premier Savings Plan") and the
Grand Premier Deferred Compensation Plan, there is no outstanding
subscription, option, warrant, right, or agreement to acquire
Grand Premier Capital Stock, or agreements to which Grand Premier
is a party or by which it may be or is bound to issue Grand
Premier Capital Stock. No stock option agreement issued under the
Grand Premier Option Plans requires or permits the payout of cash
in exchange for the cancellation of such Unexercised Option.
4.4.3 ISSUANCE OF SHARES. After the date of this Plan
of Merger, the number of issued and outstanding shares of Grand
Premier Common Stock is not subject to change before the
Effective Time except for Permitted Issuances, issuances, if any,
through the Grand Premier Savings Plan, and issuances under the
Option Agreement.
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4.4.4 VOTING RIGHTS. Other than the shares of Grand
Premier Common Stock described in this Section, neither Grand
Premier nor any of Grand Premier's subsidiaries has outstanding
any security or issue of securities the holder or holders of
which have the right to vote on the approval of the Merger or
this Plan of Merger or that entitle the holder or holders to
consent to, or withhold consent on, the Merger or this Plan of
Merger.
4.4.5 APPRAISAL RIGHTS. No holder of Grand Premier
Common Stock will be entitled to appraisal rights pursuant to
Section 262 of DGCL as a result of the consummation of the
Merger. The holders of Grand Premier Preferred Stock will be
entitled to appraisal rights pursuant to Section 262 of DGCL as a
result of the consummation of the Merger.
4.5 AMENDMENT OF GRAND PREMIER RIGHTS. Grand Premier has duly
amended the Grand Premier Rights Agreement to exempt the Merger, the
transactions contemplated by the Voting Agreement, and the award and
exercise of the Option contemplated by the Option Agreement and
prevent such events from constituting a "Flip-In Event" under the
Grand Premier Rights Agreement or otherwise triggering any other
provision under the Grand Premier Rights Agreement and prevent Old
Kent from becoming "Acquiring Persons" under such agreement. The Grand
Premier Rights issued to the holders of Grand Premier Common Stock
that are evidenced, as of the date of this Plan of Merger, by shares
of Grand Premier Common Stock may be redeemed by Grand Premier upon a
resolution therefor by the Board of Directors of Grand Premier at a
redemption price of no more than $0.01 per Grand Premier Right in
cash. Neither the execution of this Plan of Merger by Grand Premier
nor any of the provisions of this Plan of Merger, the Voting
Agreement, or the Option Agreement will adversely affect in any way
the ability of Grand Premier to redeem the Grand Premier Rights as
described in this Section 4.5 (REDEMPTION OF GRAND PREMIER RIGHTS).
4.6 FINANCIAL STATEMENTS.
4.6.1 FINANCIAL STATEMENTS. The consolidated
financial statements of Grand Premier as of and for the each of
three years ended December 31, 1996, 1997, and 1998, as reported
on by Grand Premier's independent accountants, and the unaudited
consolidated financial statements of Grand Premier and its
subsidiaries as of and for the quarters ended March 31, 1999 and
June 30, 1999, including all schedules and notes relating to such
statements, as previously delivered to Old Kent (collectively,
"Grand Premier's Financial Statements"), fairly present, and the
unaudited consolidated financial statements of Grand Premier and
its subsidiaries as of and for each quarter ending after the date
of this Plan of Merger until the Effective Time, including all
schedules and notes relating to such statements, will fairly
present, the financial condition and the results of operations,
changes in stockholders' equity, and cash flows of Grand Premier
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as of the respective dates of and for the periods referred to in
such financial statements, all in accordance with GAAP,
consistently applied, subject, in the case of unaudited interim
financial statements, to normal, recurring year-end adjustments
(the effect of which would not, individually or in the aggregate,
have a Material Adverse Effect on Grand Premier) and the absence
of notes (that, if presented, would not differ materially from
those included in Grand Premier's Financial Statements). No
financial statements of any entity or enterprise other than those
subsidiaries of Grand Premier set forth in Schedule 4.3 of the
Grand Premier Disclosure Statement are required by GAAP to be
included in the consolidated financial statements of Grand
Premier.
4.6.2 CALL REPORTS. The following reports (including
all related schedules, notes, and exhibits) were prepared and
filed in conformity with applicable regulatory requirements and
were correct and complete in all material respects when filed:
(a) The consolidated reports of condition and
income of each of the Grand Premier Banks (including
any amendments) as of and for each of the years ended
December 31, 1996, 1997, and 1998, as filed with the
FDIC; and
(b) The FR Y-9 and FR Y-6 (including any
amendments) for Grand Premier as of and for each of the
years ended December 31, 1996, 1997, and 1998, as filed
with the Federal Reserve Board.
All of such reports required to be filed prior to the Closing by
Grand Premier and/or Grand Premier Banks will be prepared and
filed in conformity with applicable regulatory requirements
applied consistently throughout their respective periods (except
as otherwise noted in such reports) and will be correct and
complete in all material respects when filed. All of the reports
identified in this Section are collectively referred to as the
"Call Reports."
4.7 ABSENCE OF UNDISCLOSED LIABILITIES. Except as and to the
extent reflected or reserved against in Grand Premier's Financial
Statements as of December 31, 1998, neither Grand Premier nor any of
Grand Premier's subsidiaries had, as of such date, liabilities or
obligations, secured or unsecured (whether accrued, absolute, or
contingent) as to which there is a reasonable probability that they
could have a Material Adverse Effect on Grand Premier.
4.8 ABSENCE OF MATERIAL ADVERSE CHANGE. Since December 31,
1998, there has been no change in the financial condition, income,
expenses, assets, liabilities or business of Grand Premier that had or
in the future is reasonably likely to have a Material Adverse Effect
on Grand Premier, other than such changes that are caused by events
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and circumstances generally affecting the banking industry as a whole.
No facts or circumstances have been discovered from which it
reasonably appears that there is a reasonable probability that there
will occur a change that is reasonably likely to have a Material
Adverse Effect on Grand Premier, other than such changes that are
caused by events and circumstances generally affecting the banking
industry as a whole.
4.9 ABSENCE OF LITIGATION. There is no action, suit,
proceeding, claim, arbitration, or investigation pending or, to the
knowledge of Grand Premier, threatened by any person, including
without limitation any governmental or regulatory agency, against
Grand Premier or any of its subsidiaries, or the assets or business of
Grand Premier or any of its subsidiaries, any of which has had or is
reasonably likely to have a Material Adverse Effect on Grand Premier.
To the knowledge of Grand Premier, there is no factual basis that
presents a reasonable potential for any such action, suit, proceeding,
claim, arbitration, or investigation.
4.10 NO INDEMNIFICATION CLAIMS. To the knowledge of Grand
Premier, there has been no event, action, or omission by or with
respect to any director, officer, employee, trustee, agent, or other
person who may be entitled to receive indemnification or reimbursement
of any claim, loss, or expense under any agreement, contract, or
arrangement providing for corporate indemnification or reimbursement
of any such person.
4.11 CONDUCT OF BUSINESS. Grand Premier and each of Grand
Premier's subsidiaries have conducted their respective businesses and
used their respective properties in substantial compliance with all
federal, state, and local laws, civil or common, ordinances and
regulations, including without limitation applicable federal and state
laws and regulations concerning banking, securities, truth-in-lending,
truth-in-savings, mortgage origination and servicing, usury, fair
credit reporting, consumer protection, occupational safety, civil
rights, employee protection, fair employment practices, fair labor
standards, and insurance, and Environmental Laws (as defined in
Section 4.24.2 (ENVIRONMENTAL LAWS)), except for such violations that,
individually or in the aggregate, would not have a Material Adverse
Effect on Grand Premier.
4.12 CONTRACTS. There is no existing default by Grand Premier
or any of its subsidiaries or, to the knowledge of Grand Premier, any
other party under any contract or agreement to which Grand Premier or
any of its subsidiaries is a party, or by which they are bound, the
result of which is reasonably likely to have a Material Adverse Effect
on Grand Premier. Excepting any ordinary and customary banking
relationships, there is no material agreement, contract, mortgage,
deed of trust, lease, commitment, indenture, note, or other instrument
of which Grand Premier has knowledge under which another party is in
material default of its obligations to Grand Premier or any of its
subsidiaries. Grand Premier is not party to any contract, agreement,
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arrangement, or understanding (other than ordinary and customary
banking relationships) that would require Grand Premier or any of its
subsidiaries to make payments or make expenditures in excess of
$200,000 per year or that would require any payment to another party
upon termination of the agreement, arrangement, or understanding in
excess of $50,000.
4.13 REGULATORY FILINGS. In the last three years:
4.13.1 SEC FILINGS. Grand Premier has filed, and in
the future will continue to file, in a timely manner all required
filings with the SEC, including without limitation all reports on
Form 10-K and Form 10-Q;
4.13.2 REGULATORY FILINGS. Grand Premier has filed in
a timely manner all other filings with other regulatory bodies
for which filings are required; and
4.13.3 COMPLETE AND ACCURATE. All such filings, as of
their respective filing dates, did not contain any untrue
statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading. All such filings complied in all material
respects with all laws, regulations, forms, and guidelines
applicable to such filings.
4.14 REGISTRATION STATEMENT, ETC.
4.14.1 ACCURATE INFORMATION. The information to be
supplied by Grand Premier for inclusion or incorporation by
reference in any Transaction Document will not contain any untrue
statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading (a) at the respective times such Transaction
Documents are filed; (b) with respect to the Registration
Statement, when it becomes effective; and (c) with respect to the
Prospectus and Proxy Statement, when it is mailed and at the time
of the Stockholders' Meeting.
4.14.2 COMPLIANCE OF FILINGS. All documents that
Grand Premier is responsible for filing with the SEC or any
regulatory agency in connection with the Merger will comply as to
form in all material respects with the provisions of applicable
law and regulation.
4.15 AGREEMENTS WITH BANK REGULATORS. Neither Grand Premier nor
any of Grand Premier's subsidiaries is a party to any agreement or
memorandum of understanding with, or a party to any commitment letter,
board resolution or similar undertaking to, or is subject to any order
or directive by, or is a recipient of any extraordinary supervisory
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letter from, any governmental authority that restricts materially the
conduct of its business, or in any manner relates to its capital
adequacy, its credit or reserve policies or its management, nor has
Grand Premier been advised by any governmental authority that it is
contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, decree,
agreement, memorandum of understanding, extraordinary supervisory
letter, commitment letter or similar submission. As of the date of
this Plan of Merger, Grand Premier knows of no reason why the
regulatory approvals referred to in Sections 3.1.4 and 4.1.4 (REQUIRED
APPROVALS) cannot be obtained or why the process would be materially
impeded.
4.16 TAX MATTERS.
4.16.1 TAXES DEFINED. "Taxes" means any federal,
state, county, local, or foreign taxes, charges, assessments,
levies, deficiencies, or other governmental fees, charges, or
amounts required to be collected, withheld, or paid to any
government, agency, or political subdivision of any government in
respect to any tax or governmental fee or charge, together with
any penalties, additions to tax or interest, due under any
applicable law, regulation, rule, or ordinance to any
governmental unit or agency, including, without limitation, taxes
with respect to income, profits, gross receipts, value added, AD
VALOREM, employment, unemployment, withholding, backup
withholding, nonresident alien withholding, social security, real
property, personal property, sales, use, excise, intangibles,
license, franchise, capital stock, and disability, and payments
based on occupation, services rendered, real property, personal
property or transfer.
4.16.2 TAX RETURNS. Grand Premier and its
subsidiaries have each duly and timely filed or delivered, and if
necessary amended, all material tax returns, information returns,
estimates, declarations, reports, statements and other filings
that are required by law, regulation, rule, or ordinance
(collectively, "Tax Returns"). Each such Tax Return, as amended,
is materially correct, and complete, and complies in all material
respects with all applicable laws, regulations, rules, and
ordinances. Grand Premier and its subsidiaries have each
maintained all necessary and appropriate accounting records to
support the positions taken on all filed Tax Returns and all
exemptions from filing Tax Returns.
4.16.3 TAX ASSESSMENTS AND PAYMENTS. All material
Taxes due and payable by Grand Premier and each of Grand
Premier's subsidiaries have been paid or deposited in full as and
when due, including applicable extension periods. Each of Grand
Premier and Grand Premier's subsidiaries have withheld and paid
over all material Taxes required to have been withheld and paid
over, and complied with all information reporting and backup
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withholding requirements, including maintenance of required
records with respect thereto, in connection with amounts paid or
owing to any employee, creditor, independent contractor or other
third parties. The provisions made for Taxes on Grand Premier's
Financial Statements as of December 31, 1998, are sufficient for
the payment of all accrued but unpaid Taxes as of the date
indicated, whether or not disputed, with respect to all periods
through December 31, 1998. There is no lien on any of Grand
Premier's or any of its subsidiaries' assets or properties with
respect to Taxes, except for liens for Taxes not yet due and
payable.
4.16.4 TAX AUDITS. None of the Tax Returns of Grand
Premier and its subsidiaries filed for any tax year after 1989
have been audited by the Internal Revenue Service (the "IRS") or
any state or local taxing authority. There is no tax audit or
legal or administrative proceeding concerning the accuracy of tax
or information returns or the assessment or collection of Taxes
pending or, to Grand Premier's knowledge, threatened with respect
to Grand Premier or its subsidiaries. No claim concerning the
calculation, assessment or collection of taxes has been asserted
and not fully resolved with respect to Grand Premier or any of
its subsidiaries. No waiver or extension of any statute of
limitations is in effect with respect to Taxes or Tax Returns of
Grand Premier or any of its subsidiaries.
4.16.5 TAX ACCOUNTING. Neither Grand Premier nor any
of its subsidiaries have been required to include in income any
adjustment pursuant to Section 481 of the Internal Revenue Code
by reason of a voluntary change in accounting method initiated by
Grand Premier or any of its subsidiaries, and the IRS has not
initiated or proposed any such adjustment or change in accounting
method. Neither Grand Premier nor any of its subsidiaries has
entered into a transaction which is being accounted for as an
installment obligation under Section 453 of the Internal Revenue
Code.
4.16.6 EXCESS PARACHUTE PAYMENTS. No compensation
that could be payable (whether in cash, stock, options, or other
property or the vesting of property or other rights) by Grand
Premier, its subsidiaries, its affiliates, or any of their
respective successors under any employment, option, benefit plan,
severance, termination or other compensation arrangement
currently in effect is, or will be, an "excess parachute payment"
(as defined in Section 280G of the Internal Revenue Code).
4.17 TITLE TO PROPERTIES. Grand Premier and each of its
subsidiaries have good, sufficient, and marketable title to all of
their properties and assets, whether real, personal, or a combination
thereof, reflected in their books and records as being owned
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(including those reflected in Grand Premier's Financial Statements as
of December 31, 1998, except as since disposed of in the ordinary
course of business), free and clear of all liens and encumbrances,
except:
4.17.1 REFLECTED ON BALANCE SHEET. As reflected on
Grand Premier's Financial Statements as of December 31, 1998;
4.17.2 NORMAL TO BUSINESS. Liens for current Taxes
not yet delinquent, and liens or encumbrances that are normal to
the business of Grand Premier and that would not have a Material
Adverse Effect on Grand Premier; and
4.17.3 IMMATERIAL IMPERFECTIONS. Such imperfections
of title, easements, restrictions, and encumbrances, if any, as
are not material in character, amount, or extent, and do not
materially detract from the value, or materially interfere with
the present use, of the properties subject thereto or affected
thereby.
4.17.4 PUBLIC EASEMENTS; ETC. Such public easements,
public rights of way, and interests of units of government of
record, if any, as are not material in character, amount, or
extent, and do not materially detract from the value, or
materially interfere with the present use, of the properties
subject thereto or affected thereby.
4.18 CONDITION OF REAL PROPERTY. With respect to each parcel of
real property owned, legally or beneficially, by Grand Premier or any
of its subsidiaries, including other real estate owned ("Grand
Premier's Real Property"), to its knowledge:
4.18.1 NO ENCROACHMENTS. Except for those
encroachments that have been insured over by a policy of title
insurance, no building or improvement to Grand Premier's Real
Property encroaches on any easement or property owned by another
person. No building or property owned by another person
encroaches on Grand Premier's Real Property or on any easement
benefitting Grand Premier's Real Property. None of the boundaries
of Grand Premier's Real Property deviates substantially from
those shown on the survey of such property, if any, included with
the Grand Premier Disclosure Statement or from what the
boundaries appear to be through visual inspection. No claim of
encroachment has been asserted by any person with respect to any
of Grand Premier's Real Property.
4.18.2 ZONING. Neither Grand Premier, any of Grand
Premier's subsidiaries, nor Grand Premier's Real Property is in
material violation of any zoning regulation, building
restriction, restrictive covenant, ordinance, or other law,
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order, regulation, or requirement relating to any of Grand
Premier's Real Property.
4.18.3 BUILDINGS. All buildings and improvements to
Grand Premier's Real Property are in good condition (normal wear
and tear excepted), are structurally sound and are not in need of
material repairs, are fit for their intended purposes, and are
adequately serviced by all utilities necessary for the effective
operation of business as presently conducted at that location.
4.18.4 NO CONDEMNATION. None of Grand Premier's Real
Property is the subject of any condemnation action. There is no
proposal under active consideration by any public or governmental
authority or entity to acquire Grand Premier's Real Property for
any governmental purpose.
4.19 REAL AND PERSONAL PROPERTY LEASES. With respect to each
lease and license pursuant to which Grand Premier or any of its
subsidiaries, as lessee or licensee, has possession of real or
personal property, excluding any personal property lease with
aggregate payments of less than $25,000 per year ("Grand Premier's
Leases"):
4.19.1 VALID. Each of Grand Premier's Leases is valid,
effective, and enforceable against the lessor or licensor in
accordance with its terms.
4.19.2 NO DEFAULT. There is no existing default under
any of Grand Premier's Leases or any event that with notice or
passage of time, or both, would constitute a default with respect
to Grand Premier, any of Grand Premier's subsidiaries or, to the
knowledge of Grand Premier, any other party to the contract,
which default is reasonably likely to have a Material Adverse
Effect on Grand Premier.
4.19.3 ASSIGNMENT. None of Grand Premier's Leases
contain a prohibition against assignment by Grand Premier or any
of its subsidiaries, by operation of law or otherwise, or any
provision that would materially interfere with the possession,
use, or rights with respect to the property by Old Kent or its
subsidiaries for the same purposes and upon the same rental and
other terms following consummation of the Merger as are
applicable to Grand Premier or Grand Premier's subsidiaries prior
to the Effective Time.
4.20 REQUIRED LICENSES, PERMITS, ETC.
4.20.1 LICENSES, PERMITS, ETC. Grand Premier and each
of Grand Premier's subsidiaries hold all licenses, certificates,
permits, franchises, and rights from all appropriate federal,
state, and other public authorities necessary for the conduct of
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its business as presently conducted, except where the lack of
which would not have a Material Adverse Effect on Grand Premier.
4.20.2 REGULATORY ACTION. Neither Grand Premier nor
any of its subsidiaries nor any of their directors, officers, or
employees has within the last five years been charged by a
regulatory authority with, or to Grand Premier's knowledge is
under governmental investigation with respect to, any actual or
alleged violation of any statute, ordinance, rule, regulation,
guideline, or standard applicable to Grand Premier or its
subsidiaries' or their respective businesses. Neither Grand
Premier nor any of its subsidiaries nor any of their directors,
officers, or employees is the subject of any pending or, to Grand
Premier's knowledge, threatened proceeding by any regulatory
authority having jurisdiction over the business, properties, or
operations of Grand Premier or any of its subsidiaries.
4.21 MATERIAL CONTRACTS. There is no agreement, contract, loan,
mortgage, deed of trust, lease, commitment, indenture, note, or other
instrument under which (a) a consent or approval is required, (b) a
prohibited assignment by operation of law could occur, (c) a waiver or
loss of any right could occur or (d) acceleration of any obligation
could occur, in each case as a result of the execution and delivery of
this Plan of Merger, or a change of control, merger, consolidation, or
liquidation of Grand Premier or any of its subsidiaries upon
consummation of the Merger where (w) the failure to obtain such
consent or approval, (x) the violation of the prohibition against
assignment, (y) the waiver or loss of any right, or (z) the
acceleration of any obligation could materially interfere with the
ordinary course of business by Grand Premier or any of its
subsidiaries (or Old Kent or any of its subsidiaries as their
successors) or have a Material Adverse Effect on Grand Premier. The
execution and delivery of this Plan of Merger by Grand Premier will
not subject Old Kent or its subsidiaries to liability for tortious
interference with contractual rights.
4.22 CERTAIN EMPLOYMENT MATTERS.
4.22.1 EMPLOYMENT POLICIES, PROGRAMS, AND PROCEDURES.
The policies, programs, and practices of Grand Premier and each
of its subsidiaries relating to equal opportunity and affirmative
action, wages, hours of work, employee disabilities, and other
terms and conditions of employment are in compliance in all
material respects with applicable federal, state, and local laws,
orders, regulations, and ordinances governing or relating to
employment and employer practices and facilities.
4.22.2 RECORD OF PAYMENTS. There is no existing or
outstanding obligation of Grand Premier or any of its
subsidiaries, whether arising by operation of law, civil or
common, by contract, or by past custom, for any Employment-
Related Payment (as defined in Section 4.22.3 (EMPLOYMENT-RELATED
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PAYMENTS)) to any trust, fund, company, governmental agency, or
any person that has not been duly recorded on the books and
records of Grand Premier and paid when due or duly accrued in the
ordinary course of business in accordance with GAAP.
4.22.3 EMPLOYMENT-RELATED PAYMENTS. For purposes of
this Plan of Merger, "Employment-Related Payments" include any
payment to be made with respect to any contract for employment;
unemployment compensation benefits; profit sharing, pension, or
retirement benefits; social security benefits; fringe benefits,
including vacation, or holiday pay, bonuses, and other forms of
compensation; or for medical insurance or medical expenses; any
of which are payable with respect to any present or former
director, officer, employee, or agent, or his or her survivors,
heirs, legatees, or legal representatives.
4.22.4 EMPLOYMENT CLAIMS. There is no dispute, claim,
or charge, pending or, to Grand Premier's knowledge, threatened,
alleging breach of any express or implied employment contract or
commitment, or breach of any applicable law, order, regulation,
public policy, or ordinance relating to employment or terms and
conditions of employment. To the knowledge of Grand Premier,
there is no factual basis for any valid claim or charge with
regard to such employment-related matters.
4.22.5 EMPLOYMENT-RELATED AGREEMENTS. There is no
written or oral, express or implied:
(a) Employment contract or agreement, or
guarantee of job security, made with or to any past or
present employee of Grand Premier or any of its
subsidiaries that is not terminable by Grand Premier or
any of its subsidiaries upon 60 days' or less notice
without penalty or obligation;
(b) Plan, contract, arrangement, understanding,
or practice providing for bonuses, pensions, options,
stock purchases, deferred compensation, retirement
payments, retirement benefits of the type described in
Statement of Financial Accounting Standard No. 106, or
profit sharing; or
(c) Plan, agreement, arrangement, or
understanding with respect to payment of medical
expenses, insurance (except insurance continuation
limited to that required under provisions of the
Consolidated Omnibus Budget Reconciliation Act), or
other benefits for any former employee or any spouse,
child, member of the same household, estate, or
survivor of any employee or former employee.
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4.23 EMPLOYEE BENEFIT PLANS. With respect to any "employee
welfare benefit plan," any "employee pension benefit plan," or any
"employee benefit plan" within the respective meanings of Sections
3(1), 3(2), and 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") (each referred to as an "Employee Benefit
Plan"), maintained by or for the benefit of Grand Premier or any of
its subsidiaries or their predecessors or to which Grand Premier or
any of its subsidiaries or their predecessors has made payments or
contributions on behalf of its employees:
4.23.1 ERISA COMPLIANCE. Grand Premier, each of
Grand Premier's subsidiaries, each Employee Benefit Plan, and all
trusts created thereunder are in substantial compliance with
ERISA, and all other applicable laws and regulations insofar as
such laws and regulations apply to such plans and trusts.
4.23.2 INTERNAL REVENUE CODE COMPLIANCE. Grand
Premier, each of Grand Premier's subsidiaries, each Employee
Benefit Plan that is intended to be a qualified plan under
Section 401(a) of the Internal Revenue Code, and all trusts
created thereunder are in substantial compliance with the
applicable provisions of the Internal Revenue Code.
4.23.3 PROHIBITED TRANSACTIONS. No Employee Benefit
Plan and no trust created thereunder has been involved,
subsequent to June 30, 1974, in any nonexempt "prohibited
transaction" as defined in Section 4975 of the Internal Revenue
Code and in Sections 406, 407, and 408 of ERISA.
4.23.4 PLAN TERMINATION. No Employee Benefit Plan
that is a qualified plan under Section 401(a) of the Internal
Revenue Code and no trust created thereunder has been terminated,
partially terminated, curtailed, discontinued, or merged into
another plan or trust after January 1, 1985, except in compliance
with notice and disclosure to the IRS and the Pension Benefit
Guaranty Corporation (the "PBGC"), where applicable, as required
by the Internal Revenue Code and ERISA. With respect to each
plan termination, all termination procedures have been completed
and there is no pending or potential liability to the PBGC, to
any plan, or to any participant under the terminated plan. Each
plan termination, partial termination, curtailment,
discontinuance, or consolidation has been accompanied by the
issuance of a current favorable determination letter by the IRS
and, where applicable, has been accompanied by plan termination
proceedings with and through the PBGC.
4.23.5 MULTIEMPLOYER PLAN. No Employee Benefit Plan
is a "multiemployer plan" within the meaning of Section 3(37)(A)
of ERISA.
4.23.6 DEFINED BENEFIT PLAN. No Employee Benefit Plan
in effect as of the date of this Plan of Merger is a "defined
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benefit plan" within the meaning of Section 3(35) of ERISA. No
Employee Benefit Plan in effect as of the date of this Plan of
Merger is subject to the minimum funding requirements of Section
412(a) of the Internal Revenue Code or Section 302 of ERISA.
4.23.7 PAYMENT OF CONTRIBUTIONS. Grand Premier has
made when due all contributions required under each Employee
Benefit Plan and under applicable laws and regulations.
4.23.8 PAYMENT OF BENEFITS. There is no payment that
has become due from any Employee Benefit Plan, any trust created
thereunder, or from Grand Premier or any of its subsidiaries that
has not been paid through normal administrative procedures to the
plan participants or beneficiaries entitled thereto, except for
claims for benefits for which administrative claims procedures
under such plan have not been exhausted.
4.23.9 FILING OF REPORTS. Grand Premier and each of
Grand Premier's subsidiaries has filed or caused to be filed, and
will continue to file or cause to be filed, in a timely manner
all filings pertaining to each Employee Benefit Plan with the
IRS, the United States Department of Labor, and the PBGC as
prescribed by the Internal Revenue Code, ERISA, and the
regulations issued thereunder. All such filings, as amended, were
complete and accurate in all material respects as of the dates of
such filings, and there were no material misstatements or
omissions in any such filing.
4.24 ENVIRONMENTAL MATTERS.
4.24.1 HAZARDOUS SUBSTANCES. For purposes of this
Plan of Merger, "Hazardous Substance" has the meaning set forth
in Section 9601 of the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, 42 U.S.C.
Section 9601, ET SEQ. ("CERCLA"), and also includes any substance
regulated by or subject to any Environmental Law (as defined
below) and any other pollutant, contaminant, or waste, including,
without limitation, petroleum, asbestos, radon, and
polychlorinated biphenyls.
4.24.2 ENVIRONMENTAL LAWS. For purposes of this Plan
of Merger, "Environmental Laws" means all laws (civil or common),
ordinances, rules, regulations, guidelines, and orders that: (a)
regulate the generation, manufacture, release, treatment,
containment, storage, handling, transportation, disposal, or
management of Hazardous Substances; (b) regulate or prescribe
standards or requirements for the protection of air, water, or
soil quality; (c) are intended to protect public health or the
environment; or (d) establish liability for the investigation,
removal, or cleanup of, or damage caused by, any Hazardous
Substance.
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4.24.3 OWNED OR OPERATED PROPERTY. With respect to:
(i) the real estate owned or leased by Grand Premier or any of
its subsidiaries or used in the conduct of their businesses; and
(ii) other real estate owned by either of the Grand Premier Banks
(collectively referred to as "Premises"):
(a) CONSTRUCTION AND CONTENT. To its knowledge,
none of the Premises is constructed of, or contains as
a component part, any material that (either in its
present form or as it may reasonably be expected to
change through aging or normal use) releases or may
release any Hazardous Substance in violation of
applicable Environmental Law. Without limiting the
generality of this Section, to Grand Premier's
knowledge, the Premises are free of asbestos-containing
building materials except to the extent properly sealed
or encapsulated in compliance with all applicable
Environmental Laws and all workplace safety and health
laws and regulations.
(b) USES OF PREMISES. To its knowledge, no part
of the Premises has been used for the generation,
manufacture, handling, containment, treatment,
transportation, storage, disposal, or management of
Hazardous Substances, except for storage in compliance
with Environmental Laws and in quantities and products
normally associated with office use, maintenance and
cleaning.
(c) UNDERGROUND STORAGE TANKS. To its knowledge,
the Premises do not contain, and have never contained,
any underground storage tanks. With respect to any
underground storage tank that is listed in the Grand
Premier Disclosure Statement as an exception to the
foregoing, each such underground storage tank presently
or previously located on Premises is or has been
maintained or removed, as applicable, in compliance
with all applicable Environmental Laws, and has not
been the source of any release of a Hazardous Substance
to the environment that has not been remediated in
compliance with Environmental Laws.
(d) ABSENCE OF CONTAMINATION. To its knowledge,
the Premises do not contain and are not contaminated by
any reportable quantity, or any quantity or
concentration in excess of applicable cleanup
standards, of a Hazardous Substance from any source.
(e) ENVIRONMENTAL SUITS AND PROCEEDINGS. To its
knowledge, there is no action, suit, investigation,
liability, inquiry, or other proceeding, ruling, order,
notice of potential liability, or citation involving
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Grand Premier or any of its subsidiaries that is
pending, threatened, or previously asserted and not
completely resolved under, or as a result of any actual
or alleged failure to comply with any requirement of,
any Environmental Law. To its knowledge, there is no
basis for any of the foregoing.
(f) NO IRPTA REAL PROPERTY. To Grand Premier's
knowledge, none of the Premises constitutes "real
property" within the meaning of the Illinois
Responsible Property Transfer Act, as amended.
4.24.4 TRUST PROPERTIES; FORMER PROPERTIES. With
respect to (i) real estate held and administered in trust by
either of the Grand Premier Banks and (ii) any real estate
formerly owned or leased by Grand Premier or either of the Grand
Premier Banks, Grand Premier makes the same representations as
set forth in Section 4.24.3 (OWNED OR OPERATED PROPERTY) to its
knowledge, including the knowledge of its senior trust officer,
but only to its knowledge without any investigation or inquiry.
4.24.5 LOAN PORTFOLIO. With respect to any commercial
real estate securing any outstanding loan or related security
interest in excess of $300,000 and any owned real estate acquired
in full or partial satisfaction of a debt previously contracted,
Grand Premier and each of Grand Premier's subsidiaries has
complied in all material respects with their policies (as such
policies may have been in effect from time to time and as
disclosed in the Grand Premier Disclosure Statement), and
applicable laws and regulations, if any, concerning the
investigation of each such property to determine whether or not
there exists or is reasonably likely to exist any Hazardous
Substance on, in, or under such property and whether or not a
release of a Hazardous Substance has occurred at or from such
property, other than in compliance with applicable Environmental
Laws.
4.25 DUTIES AS FIDUCIARY. Each of the Grand Premier Banks has
performed all of its duties in any capacity as trustee, executor,
administrator, registrar, guardian, custodian, escrow agent, receiver,
or other fiduciary in a fashion that complies in all material respects
with all applicable laws, regulations, orders, agreements, wills,
instruments, and common law standards. Neither of the Grand Premier
Banks has received notice of any claim, allegation, or complaint from
any person that such bank failed to perform these fiduciary duties in
a manner that complies in all material respects with all applicable
laws, regulations, orders, agreements, wills, instruments, and common
law standards.
4.26 INVESTMENT BANKERS AND BROKERS. Grand Premier has employed
Credit Suisse First Boston ("Credit Suisse First Boston"), in
connection with the Merger. Grand Premier, Grand Premier's
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subsidiaries, and their respective affiliates, directors, officers,
and agents (collectively, "Grand Premier's Representatives") have not
employed, engaged, or consulted with any broker, finder, or investment
banker other than Credit Suisse First Boston in connection with this
Plan of Merger or the Merger. Other than the fees and expenses payable
by Grand Premier to Credit Suisse First Boston in connection with the
Merger, as described in the Grand Premier Disclosure Statement, there
is no investment banking fee, financial advisory fee, brokerage fee,
finder's fee, commission, or compensation payable by Grand Premier or
any of its subsidiaries to any person with respect to the Plan of
Merger or the consummation of the Merger. True and complete copies of
each agreement, arrangement, and understanding between Grand Premier
and Credit Suisse First Boston are included in the Grand Premier
Disclosure Statement. Grand Premier has no express or implied
agreement, arrangement, or understanding with any person other than
Credit Suisse First Boston relative to the payment of any investment
banking fee, financial advisory fee, brokerage fee, finder's fee,
commission, or similar compensation with respect to this Plan of
Merger or the consummation of the Merger.
4.27 FAIRNESS OPINION. Grand Premier's board of directors has
received the opinion of Credit Suisse First Boston, in its capacity as
Grand Premier's financial advisor, substantially to the effect that
the consideration to be received by the holders of the Grand Premier
Common Stock in the Merger is fair to the holders of Grand Premier
Common Stock from a financial point of view. Upon the receipt of a
written opinion of Credit Suisse First Boston to that effect, Grand
Premier will provide a copy of such opinion to Old Kent within five
Business Days.
4.28 GRAND PREMIER-RELATED PERSONS. For purposes of this Plan
of Merger, the term "Grand Premier-Related Person" shall mean any
director or executive officer of Grand Premier or any of its
subsidiaries, their spouses and children, any person who is a member
of the same household as such persons, and any corporation, limited
liability company, partnership, proprietorship, trust, or other entity
of which any such persons, alone or together, have Control.
4.28.1 CONTROL OF MATERIAL ASSETS. Other than in a
capacity as a stockholder, director, or executive officer of
Grand Premier or any of its subsidiaries, no Grand
Premier-Related Person owns or controls any material assets or
properties that are used in the business of Grand Premier or any
of its subsidiaries.
4.28.2 CONTRACTUAL RELATIONSHIPS. Other than (i)
ordinary and customary banking relationships, (ii) other
contractual relationships that would require Grand Premier or any
of its subsidiaries to make payments or make expenditures in
excess of $60,000 per year, and (iii) any employment
relationships not terminable within 60 days without penalty or
further obligation; no Grand Premier-Related Person has any
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contractual relationship with Grand Premier or any of its
subsidiaries.
4.28.3 LOAN RELATIONSHIPS. No Grand Premier-Related
Person has any outstanding loan or loan commitment from, or on
whose behalf an irrevocable letter of credit has been issued by,
Grand Premier or any of its subsidiaries in a principal amount of
$60,000 or more.
4.29 CHANGE IN BUSINESS RELATIONSHIPS. To Grand Premier's
knowledge, whether on account of the Merger or otherwise: (a) no
customer, agent, representative, or supplier of Grand Premier or any
of its subsidiaries, or other person with whom Grand Premier or any of
its subsidiaries has a contractual relationship, intends to
discontinue, diminish, or change its relationship with Grand Premier
or any of its subsidiaries, the effect of which is reasonably likely
to have a Material Adverse Effect on Grand Premier or any of its
subsidiaries; or (b) no executive officer of Grand Premier or any of
its subsidiaries currently plans to terminate his or her employment.
4.30 INSURANCE. Grand Premier and each of Grand Premier's
subsidiaries maintain in full force and effect insurance on their
respective assets, properties, premises, operations, and personnel in
such amounts and against such risks and losses as are customary and
adequate for comparable entities engaged in the same business and
industry. There is no unsatisfied claim of $100,000 or more under such
insurance as to which the insurance carrier has denied liability.
During the last five years, no insurance company has canceled or
refused to renew a policy of insurance covering Grand Premier's or any
of Grand Premier's subsidiaries' assets, properties, premises,
operations, or personnel. Grand Premier and each of Grand Premier's
subsidiaries have given adequate and timely notice to each insurance
carrier, and have complied with all policy provisions, with respect to
any material known claim for which a defense and/or indemnification
may be available to Grand Premier or any of its subsidiaries.
4.31 BOOKS AND RECORDS. The books of account, minute books,
stock record books, and other records of Grand Premier are complete
and correct in all material respects, represent bona fide
transactions, and have been maintained in accordance with sound
business practices, including the maintenance of an adequate internal
control system. The corporate minute books of Grand Premier and each
of Grand Premier's subsidiaries contain accurate and complete records
of all meetings of, and corporate action taken by, their stockholders,
boards, and committees in all material respects. Since January 1,
1990, the minutes of each meeting (or corporate action without a
meeting) of any such stockholders, boards, or committees have been
duly prepared and are contained in such minute books. All such minute
books and related exhibits or attachments for all meetings since
January 1, 1996, have been made available for Old Kent's review prior
to the date of this Plan of Merger without material omission or
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redaction except for redactions relating to the Merger or possible
business combinations after June 21, 1999.
4.32 LOAN GUARANTEES. All guarantees of indebtedness owed to
Grand Premier or any of its subsidiaries, including without limitation
those of the Federal Housing Administration, the Small Business
Administration, and other state and federal agencies, are valid and
enforceable.
4.33 EVENTS SINCE DECEMBER 31, 1998. Neither Grand Premier nor
any of Grand Premier's subsidiaries has, since December 31, 1998:
4.33.1 BUSINESS IN ORDINARY COURSE. Other than as
contemplated by this Plan of Merger, conducted its business other
than in the ordinary course, or incurred or become subject to any
liability or obligation, except liabilities incurred in the
ordinary course of business, and except for any single liability
or for the aggregate of any group of related liabilities not in
the ordinary course of business that do not exceed $100,000.
4.33.2 STRIKES OR LABOR TROUBLE. Experienced or, to
its knowledge, been threatened by any strike, work stoppage,
organizational effort, or other labor trouble, or any other event
or condition of any similar character that has had or is
reasonably likely to have a Material Adverse Effect on Grand
Premier or any of its subsidiaries.
4.33.3 DISCHARGE OF OBLIGATIONS. Discharged or
satisfied any lien or encumbrance, or paid any obligation or
liability other than those shown on Grand Premier's Financial
Statements as of December 31, 1998, or incurred after that date,
other than in the ordinary course of business, except for such
liens, encumbrances, liabilities, and obligations that do not in
the aggregate exceed $100,000.
4.33.4 MORTGAGE OF ASSETS. Mortgaged, pledged, or
subjected to lien, charge, or other encumbrance any of its
assets, or sold or transferred any such assets, except in the
ordinary course of business, except for such mortgages, pledges,
liens, charges, and encumbrances for indebtedness that do not in
the aggregate exceed $100,000.
4.33.5 CONTRACT AMENDMENT OR TERMINATION. Made or
permitted any amendment or early termination of any contract,
agreement or understanding to which it is a party and that is
material to the financial condition, income, expenses, business,
properties, or operations of Grand Premier, except as may be
expressly provided in this Plan of Merger.
4.34 RESERVE FOR LOAN AND LEASE LOSSES. The allowance for loan
and lease losses as reflected in Grand Premier's Financial Statements
and Call Reports for the year ended December 31, 1998, was in the
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reasonable opinion of management (a) adequate to meet all reasonably
anticipated loan and lease losses, net of recoveries related to loans
previously charged off as of those dates, and (b) consistent with GAAP
and safe and sound banking practices.
4.35 LOAN ORIGINATION AND SERVICING. In originating,
underwriting, servicing, purchasing, selling, transferring, and
discharging loans, mortgages, land contracts, and other contractual
obligations, either for its own account or for the account of others,
each of Grand Premier's subsidiaries has complied with all applicable
terms and conditions of such obligations and with all applicable laws,
regulations, rules, contractual requirements, and procedures, except
for incidents of noncompliance that would not, individually or in the
aggregate, have a Material Adverse Effect on Grand Premier or any of
its subsidiaries.
4.36 NO INSIDER TRADING. Grand Premier has reviewed its stock
transfer records since December 31, 1998 concerning known stock
transfers since that date. Since December 31, 1998, Grand Premier has
not, and to Grand Premier's knowledge (a) no director or officer of
Grand Premier, (b) no person related to any such director or officer
by blood or marriage and residing in the same household, and (c) no
person who has been knowingly provided material nonpublic information
by any one or more of these persons, has purchased or sold, or caused
to be purchased or sold, any shares of Grand Premier Common Stock or
other securities issued by Grand Premier during any period when Grand
Premier was in possession of material nonpublic information or in
violation of any applicable provision of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
4.37 YEAR 2000 COMPLIANCE. Grand Premier and its subsidiaries
have each adopted and are implementing, as applicable, plans and
procedures consistent with applicable regulatory requirements and
guidelines and good business practices so that their Year 2000 Assets
are and will be timely modified, upgraded or replaced to become Year
2000 Ready in all material respects by September 30, 1999.
4.37.1 COMPLIANCE PLAN. The Grand Premier Disclosure
Statement contains copies of all Year 2000 plans and procedures,
together with a current estimate of anticipated associated
compliance costs. Also included in the Grand Premier Disclosure
Statement are copies of all material communications between Grand
Premier or its subsidiaries and their regulators relating to such
compliance matters.
4.37.2 COMPLIANCE COSTS. The remaining cost and
process of achieving Year 2000 readiness for any Year 2000 Assets
that are not Year 2000 Ready do not, and will not, constitute a
Material Adverse Effect with respect to Grand Premier or any of
its subsidiaries.
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4.37.3 REGULATORY COMPLIANCE. Grand Premier and its
subsidiaries are in material compliance with the requirements,
guidelines, and schedule contained in the Federal Financial
Institutions Examination Council's statements dated May 5, 1997,
"YEAR 2000 PROJECT MANAGEMENT AWARENESS," and December 17, 1997,
"SAFETY AND SOUNDNESS GUIDELINES CONCERNING THE YEAR 2000
BUSINESS RISK," and dated October 15, 1998, "INTERAGENCY
GUIDELINES ESTABLISHING YEAR 2000 STANDARDS FOR SAFETY AND
SOUNDNESS," to the extent applicable. Neither Grand Premier nor
its subsidiaries have received any Year 2000 deficiency
notification letter from any regulator having jurisdiction
pertaining to Year 2000 readiness.
4.37.4 COMPATIBILITY. Grand Premier makes no
representation relating to the compatibility of the technology
used by Grand Premier or any of its subsidiaries with that used
by Old Kent or any of its subsidiaries with respect to the cost
of integrating the technology of Grand Premier or any of its
subsidiaries with that used by Old Kent or any of its
subsidiaries.
4.38 JOINT VENTURES; STRATEGIC ALLIANCES. Neither Grand Premier
nor any of its subsidiaries is, directly or indirectly, a party to or
bound by any joint venture, partnership, limited partnership, limited
liability company, or strategic alliance agreement or arrangement with
or through any unaffiliated person providing for their joint or
cooperative development, marketing, referrals, or sales of banking,
securities, insurance, or other financial products or services, or
their joint investment in and management of any active business
enterprise.
4.39 POLICIES AND PROCEDURES. Since January 1, 1997, Grand
Premier and its subsidiaries have complied in all material respects
with the policies and procedures as formally adopted by the board of
directors of Grand Premier or its subsidiaries as applicable to the
periods when those policies and procedures were in effect.
4.40 ACCOUNTING AND TAX TREATMENT. Neither Grand Premier nor,
to its knowledge, any of its affiliates, has taken or agreed to take
any action or knows of any reason that, with respect to Grand Premier
and its affiliates, would prevent Old Kent from accounting for the
business combination to be effected by the Merger as a
pooling-of-interests. Grand Premier has no knowledge of any reason why
the Merger would fail to qualify as a reorganization under Section
368(a) of the Internal Revenue Code.
ARTICLE V - COVENANTS PENDING CLOSING
Subject to the terms and conditions of this Plan of Merger, Grand
Premier, Old Kent, and MergerSub further agree that:
5.1 DISCLOSURE STATEMENTS; ADDITIONAL INFORMATION.
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5.1.1 FORM AND CONTENT. The Old Kent Disclosure
Statement and the Grand Premier Disclosure Statement have been
prepared substantially in the form contained in Exhibit D. Each
shall contain appropriate references and cross-references with
respect to each of the disclosures, and appropriate identifying
markings with respect to each of the documents, that pertain to
one or more sections or articles of this Plan of Merger. Old Kent
and Grand Premier have each prepared and delivered two complete
copies of its Disclosure Statement.
5.1.2 UPDATE. Not less than the six Business Days
prior to the Closing, Old Kent and Grand Premier shall each
deliver to the other an update to its Disclosure Statement
describing any material changes and containing any new or amended
documents, as specified below, that are not contained in its
Disclosure Statement as initially delivered. This update shall
not cure any breach of a representation or warranty occurring on
the date of this Plan of Merger.
5.1.3 CERTIFICATION. Each of Old Kent's and Grand
Premier's Disclosure Statement and its update shall be certified
on its behalf by its chief executive officer and its executive
vice president (or, in the case of Old Kent, such other executive
officer(s) as may be appropriate) that such Disclosure Statement
does not contain any untrue statement of a material fact, or omit
to state a material fact necessary to make the statements
contained therein, in light of the circumstances in which they
are made, not misleading.
5.1.4 GRAND PREMIER'S SCHEDULE OF ADDITIONAL
INFORMATION. Grand Premier shall prepare and deliver to Old Kent
two copies of the Schedule of Additional Information attached as
Exhibit E within 45 days after the date of this Plan of Merger.
The Schedule of Additional Information shall contain the
information described in Exhibit E with appropriate references
and cross-references with respect to each of the disclosures and
appropriate identifying marking with respect to each of the
documents. The Schedule of Additional Information shall be
complete in all material respects and include true and correct
copies of each document so provided.
5.2 CHANGES AFFECTING REPRESENTATIONS. While this Plan of
Merger is in effect, if either Old Kent or Grand Premier becomes aware
of any facts or of the occurrence or impending occurrence of any event
that (a) would cause one or more of the representations and warranties
it has given in Article III or IV, respectively, subject to the
exceptions contained in the Grand Premier Disclosure Statement or the
Old Kent Disclosure Statement, respectively, to become untrue or
incomplete in any material respect; or (b) would have caused one or
more of such representations and warranties to be untrue or incomplete
in any material respect had such facts been known or had such event
occurred prior to the date of this Plan of Merger, then such party
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(the "Notifying Party") shall immediately give detailed written notice
of such discovery or change, including a detailed description of the
underlying facts or events, together with all pertinent documents, to
the other party. Unless waived by the other party in writing, the
Notifying Party shall use all commercially reasonable efforts to take
remedial or preventative action, if possible, in order that such
representations and warranties will again be true and complete in all
material respects by the Closing. No remedial action taken by a
Notifying Party shall be deemed to cure a breach of any representation
or warranty given by the Notifying Party in this Plan of Merger,
unless such cure is to the reasonable satisfaction of the other party.
5.3 GRAND PREMIER'S CONDUCT OF BUSINESS PENDING THE EFFECTIVE
TIME. Grand Premier agrees that, until the Effective Time, except as
consented to in writing by Old Kent or as otherwise provided in this
Plan of Merger, Grand Premier shall, and it shall cause each of its
subsidiaries to:
5.3.1 ORDINARY COURSE. Conduct its business, manage
its property and invest its assets only in the usual, regular,
and ordinary course and not otherwise, in substantially the same
manner as prior to the date of this Plan of Merger, and not make
any substantial change to its expenditures or methods of
management, operation, or practices in respect of such business,
property or investments.
5.3.2 NO INCONSISTENT ACTIONS. Take no action that
would be inconsistent with or contrary to the representations,
warranties, and covenants made by Grand Premier in this Plan of
Merger, and take no action that would cause Grand Premier's
representations and warranties to become untrue in any material
respect except as and to the extent required by applicable laws
and regulations or regulatory agencies having jurisdiction or
this Plan of Merger.
5.3.3 COMPLIANCE. Comply in all material respects
with all laws, regulations, agreements, court orders,
administrative orders, and formally adopted internal policies and
procedures applicable to the conduct of its business, except to
the extent that the application of any law, regulation, or order
is being contested in good faith and Old Kent has been notified
of such contest.
5.3.4 NO AMENDMENTS. Make no change in its amended
and restated certificate of incorporation or its by-laws.
5.3.5 BOOKS AND RECORDS. Maintain its books,
accounts, and records in the usual and regular manner, and in
material compliance with all applicable laws, rules, regulations,
governmental policy issuances, accounting standards, and formally
adopted internal policies and procedures.
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5.3.6 NO CHANGE IN STOCK. Except as contemplated by
this Plan of Merger or the Option Agreement: (a) make no change
in the number of shares of its capital stock issued and
outstanding other than Permitted Issuances; (b) grant no warrant,
option, or commitment relating to its capital stock, except for
awards of options to purchase Grand Premier Common Stock included
in clause (ii) of the definition of "Permitted Issuance;" (c)
enter into no agreement relating to its capital stock; and (d)
issue no securities convertible into its capital stock.
5.3.7 MAINTENANCE. Use all commercially reasonable
efforts to maintain its property and assets in their present
state of repair, order, and condition, reasonable wear and tear
and damage by fire or other casualty covered by insurance
excepted.
5.3.8 PRESERVATION OF GOODWILL. Use all commercially
reasonable efforts to preserve its business organization intact,
to keep available the services of its present officers and
employees, and to preserve the goodwill of its customers and
others having business relations with it.
5.3.9 INSURANCE POLICIES. Use all commercially
reasonable efforts to maintain and keep in full force and effect
insurance coverage, so long as such insurance is reasonably
available, on its assets, properties, premises, operations, and
personnel in such amounts, against such risks and losses, and
with such self-insurance requirements as are presently in force.
5.3.10 CHARGE-OFFS. Charge off loans and maintain its
allowance for loan and lease losses, in each case in a manner in
conformity with the prior practices of Grand Premier and the
Grand Premier Banks and applicable industry, regulatory, and
accounting standards.
5.3.11 POLICIES AND PROCEDURES. Make no material
change in any policies and procedures applicable to the conduct
of its business, including without limitation any loan and
underwriting policies, loan loss and charge-off policies,
investment policies, and employment policies, except as and to
the extent required by law or regulatory agencies having
jurisdiction over Grand Premier or its subsidiaries.
5.3.12 NEW DIRECTORS OR EXECUTIVE OFFICERS. Except to
reelect persons who are then incumbent officers and directors at
annual meetings, not (a) increase the number of directors or fill
any vacancy on the board of directors, (b) elect or appoint any
person to an executive office, or (c) hire any person to perform
the services of an executive officer.
5.3.13 COMPENSATION AND FRINGE BENEFITS. Take no
action to increase, or agree to increase, the salary, severance,
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or other compensation payable to, or fringe benefits of, or pay
or agree to pay any bonus to, any officer or director, or any
other class or group of employees as a class or group without Old
Kent's prior written consent, except that Grand Premier may pay
or agree to pay for periods ending on or before the date of the
Effective Time, previously planned or scheduled salary increases
and bonuses, consistent with past practices, all of which have
been set forth in Schedule 5.3.13 of the Grand Premier Disclosure
Statement (excluding any update thereof). The payment of any and
all such compensation shall be subject to the limitations
prescribed for pooling-of-interests accounting treatment of the
Merger.
5.3.14 BENEFIT PLANS. Take no action to introduce,
change, terminate, or agree to introduce or change, any pension,
profit-sharing, or employee benefit plan, fringe benefit program,
or other plan or program of any kind for the benefit of its
employees unless required by law or this Plan of Merger.
5.3.15 NEW EMPLOYMENT AGREEMENTS. Take no action to
enter into any employment agreement that is not terminable by
Grand Premier or any of its subsidiaries, as the case may be,
without cost or penalty upon 60 days' or less notice, except as
contemplated by this Plan of Merger.
5.3.16 BORROWING. Take no action to borrow money
except in the ordinary course of business.
5.3.17 MORTGAGING ASSETS. Take no action to sell,
mortgage, pledge, encumber, or otherwise dispose of, or agree to
sell, mortgage, pledge, encumber, or otherwise dispose of, any of
its property or assets, except in the ordinary course of business
or except for property or assets, or any group of related
properties or assets, that have a fair market value of less than
$100,000.
5.3.18 NOTICE OF ACTIONS. Notify Old Kent of the
threat or commencement of any material action, suit, proceeding,
claim, arbitration, or investigation against, relating to, or
affecting: (a) Grand Premier or any of its subsidiaries; (b)
their respective directors, officers, or employees in their
capacities as such; (c) Grand Premier's or any of Grand Premier's
subsidiaries' assets, liabilities, businesses, or operations; or
(d) the Merger or this Plan of Merger.
5.3.19 COOPERATION. Take such reasonable actions as
may be necessary to consummate the Merger and the Bank
Consolidation.
5.3.20 CHARITABLE CONTRIBUTIONS. Neither make nor
renew any charitable contributions, gifts, commitments, or
pledges of cash or other assets except for contributions that in
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the aggregate will have a fair market value not greater than
$50,000.
5.3.21 LARGE EXPENDITURES. Take no action to pay,
agree to pay, or incur any liability, excepting such liabilities
that have been accrued on its books as of the date of this Plan
of Merger, for the purchase or lease of any item of real
property, fixtures, equipment, or other capital asset in excess
of $50,000 individually or in excess of $100,000 in the aggregate
with respect to Grand Premier, except pursuant to prior
commitments or plans made by Grand Premier that are disclosed in
the Grand Premier Disclosure Statement.
5.3.22 NEW SERVICE ARRANGEMENTS. Take no action to
enter into, or commit to enter into, any agreement for trust,
consulting, professional, or other services to Grand Premier or
any of its subsidiaries that is not terminable by Grand Premier
without penalty upon 60 days' or less notice; except for
contracts for services under which the aggregate required
payments do not exceed $50,000 and except for legal, accounting,
and other ordinary expenses related to this Plan of Merger.
5.3.23 CAPITAL IMPROVEMENTS. Take no action to open,
enlarge, or materially remodel any bank or other facility, and
not lease, renew any lease, purchase, or otherwise acquire use of
any real property for a branch bank, or apply for regulatory
approval of any new branch bank, excepting pursuant to prior
commitments or plans made by Grand Premier or Grand Premier Banks
that are disclosed in the Grand Premier Disclosure Statement.
5.3.24 STRATEGIC ALLIANCES. Take no action to enter
into, or commit to enter into, any joint venture, strategic
alliance, or material relationship with any person to jointly
develop, market, or offer any product or service; or disclose any
customer names, addresses, telephone numbers, or lists to any
person not employed by Grand Premier or its subsidiaries in
connection with their employment.
5.4 APPROVAL OF PLAN OF MERGER BY GRAND PREMIER STOCKHOLDERS.
Grand Premier, acting through its board of directors, shall, in
accordance with the DGCL and its amended and restated certificate of
incorporation and by-laws, promptly and duly call, give notice of,
convene, and hold as soon as practicable following the date upon which
the Registration Statement becomes effective, a stockholders meeting
for the purpose of adopting this Plan of Merger (the "Stockholders'
Meeting").
5.4.1 BOARD RECOMMENDATION. Except while a "Fiduciary
Event" (as defined below) has occurred and continues, at the
Stockholders' Meeting and in any proxy materials used in
connection with the meeting, the board of directors of Grand
Premier shall declare that this Plan of Merger is advisable and
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recommend that the holders of Grand Premier Common Stock vote for
approval of this Plan of Merger.
5.4.2 SOLICITATION OF PROXIES, ETC. Except while a
Fiduciary Event has occurred and continues, Grand Premier shall
use all commercially reasonable efforts to solicit from its
stockholders proxies to vote on the proposal to approve this Plan
of Merger, to secure a quorum at the Stockholders' Meeting, and
to secure the vote of stockholders required by the DGCL and Grand
Premier's amended and restated certificate of incorporation and
by-laws to approve this Plan of Merger.
5.4.3 FIDUCIARY EVENT. A "Fiduciary Event" shall
have occurred when the board of directors of Grand Premier has
(a) received in writing a "Superior Proposal" (defined below),
which is then pending, (b) determined in good faith (based on the
advice of legal counsel) that the failure to so withdraw, modify,
or change its recommendation would cause the board of directors
of Grand Premier to breach its fiduciary duties to Grand
Premier's stockholders under applicable law, and (c) determined
to accept and recommend the Superior Proposal to the stockholders
of Grand Premier.
5.4.4 SUPERIOR PROPOSAL. A "Superior Proposal" means
any bona fide unsolicited Proposal (as defined in Section 5.9.2
(COMMUNICATION OF OTHER PROPOSALS)) made by a third party on
terms that the board of directors of Grand Premier determines in
its good faith judgment, based upon the written advice of Credit
Suisse First Boston (or another financial advisor with a
nationally recognized reputation) to be more favorable to Grand
Premier's stockholders than this Plan of Merger from a financial
point of view.
5.4.5 NOTICE. Grand Premier shall notify Old Kent at
least two Business Days prior to taking any action with respect
to such Superior Proposal. Notwithstanding any provision to the
contrary in this Plan of Merger, any withdrawal or modification
of, or change in the recommendation, of the Board of Directors
with respect to the Merger or the Plan of Merger following the
occurrence and during the continuance of a Fiduciary Event shall
not constitute a breach by Grand Premier of Section 5.4.1 (BOARD
RECOMMENDATION).
5.5 REGULAR DIVIDENDS. Grand Premier shall not declare, set
aside, pay, or make any dividend or other distribution or payment
(whether in cash, stock, or property) with respect to, or purchase or
redeem, any shares of Grand Premier Capital Stock other than (a)
regular quarterly cash dividends on Grand Premier Common Stock in an
amount not to exceed $0.09 per share per quarter payable on the
regular historical payment dates, and (b) dividends on Grand Premier
Preferred Stock required to be paid when and as provided by Grand
Premier's amended and restated certificate of incorporation; all in a
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manner consistent with Grand Premier's past dividend practice. Old
Kent and Grand Premier agree that they will cooperate to assure that,
during any calendar quarter, there shall not be a duplication of
payment of dividends to the holders of Grand Premier Common Stock.
Notwithstanding the preceding sentences, if and to the extent that the
payment of a dividend in the manner provided in this Section would, in
Old Kent's reasonable judgment, present a significant risk that under
GAAP or the rules, regulations, or interpretations of the SEC or its
staff, the Merger would not qualify for pooling-of-interests
accounting treatment, that dividend shall not be paid, but an
equitable adjustment shall be made to the Exchange Ratio for the
amount of the dividend not paid.
5.6 TECHNOLOGY-RELATED CONTRACTS. Grand Premier shall advise
Old Kent of all anticipated renewals or extensions of existing data
processing service agreements, data processing software license
agreements, data processing hardware lease agreements, and other
material technology-related licensing or servicing agreements with
independent vendors ("Technology-Related Contracts") which will occur
between the date of this Plan of Merger and the date of the Effective
Time. Grand Premier's material Technology-Related Contracts are
contained in the Grand Premier Disclosure Statement. Notwithstanding
any other provision of this Section, Grand Premier shall not be
obligated to take any irrevocable action, or irrevocably forego taking
any action, with respect to these Technology-Related Contracts which
would cause any such agreement to terminate, expire, or be materially
modified prior to the Effective Time.
5.6.1 CONTRACT NOTICES. Grand Premier shall send to
each vendor, as and when permitted after the date of this Plan of
Merger, such notices of nonrenewal as may be necessary or
appropriate under the terms of these Technology-Related Contracts
to prevent them from automatically renewing for a term extending
beyond the Effective Time. Such notices may be conditioned upon
the consummation of the Merger.
5.6.2 EXTENSIONS AND RENEWALS. Grand Premier shall
cooperate with Old Kent in negotiating with each vendor the
length of any new, extension, or renewal term of these
Technology-Related Contracts in those cases where such extension
or term extends beyond the Effective Time.
5.6.3 NEW AGREEMENTS. Neither Grand Premier nor any
of Grand Premier's subsidiaries shall enter into any new
Technology-Related Contract, except with Old Kent's consent
(which shall not be unreasonably withheld or delayed if such
agreement is necessary for Grand Premier or any of its
subsidiaries to conduct business in the ordinary course through
the Effective Time).
5.7 AFFILIATES -- COMPLIANCE WITH ACCOUNTING AND SECURITIES
RULES.
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5.7.1 GRAND PREMIER'S AFFILIATES. Grand Premier shall
use all commercially reasonable efforts to cause each director,
executive officer, and other person who is an "affiliate" (for
purposes of (a) Rule 145 under the Securities Act of 1933, as
amended (the "Securities Act"), and (b) qualifying the Merger for
pooling-of-interests accounting treatment) of Grand Premier to
deliver to Old Kent, as soon as practicable after the date of
this Plan of Merger, and prior to the date of the Stockholders'
Meeting, a written agreement, in the form of Exhibit F (the
"Grand Premier Affiliate Agreements"). Grand Premier shall
provide a list of such affiliates within seven days of the date
of this Plan of Merger and shall update such list as necessary
upon the reasonable request of Old Kent.
5.7.2 OLD KENT'S AFFILIATES. Old Kent shall use all
commercially reasonable efforts to cause each director, executive
officer, and other person who is an "affiliate" (for the purpose
of qualifying the Merger for pooling-of-interests accounting
treatment) of Old Kent, as soon as practicable after the date of
this Plan of Merger, and prior to the date of the Stockholders'
Meeting, to execute and deliver a written agreement under which
such affiliate agrees not to sell, pledge, transfer, or otherwise
dispose of his or her Old Kent Common Stock during any period
that any such disposition would, under GAAP or the rules,
regulations, or interpretations of the SEC or its staff,
disqualify the Merger for pooling-of-interests accounting
treatment.
5.7.3 PUBLISHING OPERATING RESULTS. Old Kent shall use
all commercially reasonable efforts to publish as promptly as
reasonably practical but in no event later than 30 days after the
end of the first full calendar month after the Effective Time in
which there are at least 30 days of post-Merger combined
operations (which month may be the month in which the Effective
Time occurs), combined sales and net income figures as
contemplated by and in accordance with the terms of SEC
Accounting Series Release No. 135.
5.8 INDEMNIFICATION AND INSURANCE.
5.8.1 INDEMNIFICATION. Old Kent shall honor any and
all rights to indemnification and advancement of expenses
existing as of the Effective Time in favor of the directors and
officers of Grand Premier and Grand Premier's subsidiaries under
their certificates of incorporation, articles of association, or
by-laws (as of the date of this Plan of Merger) which, as
enforceable contractual rights, shall survive the Merger and
shall, as contractual rights, continue with respect to acts or
omissions occurring before the Effective Time with the same force
and effect as prior to the Effective Time.
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5.8.2 INSURANCE. Old Kent shall use all commercially
reasonable efforts to cause the persons serving as officers and
directors of Grand Premier immediately prior to the Effective
Time to be covered for a period of at least three years from the
Effective Time by the directors' and officers' liability
insurance policy maintained by Grand Premier with respect to acts
or omissions occurring prior to the Effective Time that were
committed by such officers and directors in their capacity as
such. Old Kent may substitute, for Grand Premier's current
coverage, coverage for at least two years under policies
maintained by Old Kent that offer comparable or better coverage
and amounts, and that contain terms and conditions that,
considered in the aggregate, are not materially less advantageous
than Grand Premier's current policy, and an undertaking by Old
Kent to maintain such coverage for the remaining period of the
three year period provided for by this Section. In no event shall
Old Kent be required to spend, directly or indirectly through
Grand Premier or its subsidiaries, more than $100,000 per annum
(the "Insurance Amount") to either maintain or procure insurance
coverage pursuant to this Plan of Merger. Old Kent and Grand
Premier agree to cooperate and use all commercially reasonable
efforts to maximize the insurance coverage that may be available
for the Insurance Amount. If Old Kent does not advise Grand
Premier in writing prior to the commencement of the Pricing
Period that it has procured such coverage for at least two years
and that it undertakes to procure and maintain coverage that
offers comparable or better coverage and amounts, and that
contains terms and conditions that, considered in the aggregate,
are not materially less advantageous than Grand Premier's current
policy for the remaining period of the three year period provided
for by this Section without regard to the Insurance Amount, Grand
Premier shall be permitted (after giving Old Kent three Business
Days prior written notice and an additional two Business Day
period to purchase such coverage), in lieu of receiving the
foregoing insurance coverage, to procure tail coverage for past
acts and omissions for a single premium amount not in excess of
the Insurance Amount.
5.9 EXCLUSIVE COMMITMENT. Except as provided below, neither
Grand Premier nor any of Grand Premier's Representatives, investment
bankers, or agents, shall take any action inconsistent with the intent
to consummate the Merger upon the terms and conditions of this Plan of
Merger. Without limiting the foregoing:
5.9.1 NO SOLICITATION. Neither Grand Premier nor any
of Grand Premier's Representatives, investment bankers, or agents
shall, directly or indirectly, invite, initiate, solicit,
encourage, or unless a Fiduciary Event has occurred and continues
(or a Superior Proposal has been presented and such Superior
Proposal would otherwise give rise to a Fiduciary Event except
that the board of directors of Grand Premier, at that time, has
yet to determine to accept and recommend the Superior Proposal to
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the stockholders of Grand Premier), negotiate with any other
party, any proposals, offers, or expressions of interest
concerning any tender offer, exchange offer, merger,
consolidation, sale of shares, sale of assets, or assumption of
liabilities not in the ordinary course, or other business
combination involving Grand Premier or any of its subsidiaries
other than the Merger (a "Business Combination").
5.9.2 COMMUNICATION OF OTHER PROPOSALS. Grand Premier
shall cause written notice to be delivered to Old Kent promptly
upon receipt of any solicitation, offer, proposal, or expression
of interest (a "Proposal") concerning a Business Combination.
Such notice shall contain the material terms and conditions of
the Proposal to which such notice relates. Within 15 Business
Days after Grand Premier's receipt of a Proposal, Grand Premier
shall give notice to Old Kent whether or not a Fiduciary Event
has occurred and, if it has not occurred, Grand Premier's notice
shall include a copy of Grand Premier's unequivocal rejection of
the Proposal in the form that such rejection was actually
delivered to the person from whom the Proposal was received.
Thereafter, Grand Premier shall promptly notify Old Kent of any
material changes in the terms, conditions, and status of any
Proposal.
5.9.3 FURNISHING INFORMATION. Unless a Fiduciary
Event has occurred and continues (or a Superior Proposal has been
presented and such Superior Proposal would otherwise give rise to
a Fiduciary Event except that the board of directors of Grand
Premier, at that time, has yet to determine to accept and
recommend the Superior Proposal to the stockholders of Grand
Premier), neither Grand Premier nor any of Grand Premier's
Representatives, investment bankers, or agents shall furnish any
nonpublic information concerning Grand Premier to any person who
is not affiliated with Grand Premier or Old Kent, except as
required by applicable law or regulations. Prior to furnishing
such information to such person, Grand Premier shall receive from
such person an executed confidentiality agreement with terms no
less favorable to Grand Premier than those contained in its
confidentiality agreement with Old Kent and Grand Premier shall
then provide only such information as has been furnished
previously to Old Kent.
5.9.4 CORPORATE LIABILITY FOR INDIVIDUAL'S BREACH. For
the purposes of this Section, any breach of this Section by an
executive officer or director of Grand Premier in his or her
individual capacity shall be deemed to be a breach by Grand
Premier.
5.10 REGISTRATION STATEMENT. Old Kent shall prepare and file
with the SEC under the Securities Act, the Registration Statement and
the related Prospectus and Proxy Statement included as a part thereof
covering the issuance by Old Kent of the shares of Old Kent Capital
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Stock as contemplated by this Plan of Merger, together with such
amendments as may reasonably be required for the Registration
Statement to become effective. Old Kent shall provide Grand Premier
with reasonable opportunities to review and comment upon the
Registration Statement, each amendment to the Registration Statement,
including any response to comments from the SEC, and each form of the
Prospectus and Proxy Statement before filing. Old Kent shall provide
Grand Premier with copies of all correspondence received from the SEC
with respect to the Registration Statement and its amendments and with
all responsive correspondence to the SEC. Old Kent shall notify Grand
Premier of any stop orders or threatened stop orders with respect to
the Registration Statement. Grand Premier shall provide to Old Kent
all necessary information pertaining to Grand Premier promptly upon
request, and to use all commercially reasonable efforts to obtain the
cooperation of Grand Premier's accountants, attorneys and investment
bankers in connection with the preparation of the Registration
Statement.
5.11 OTHER FILINGS. Old Kent shall prepare and file with the
Federal Reserve Board and each other regulatory agency having
jurisdiction all documents reasonably required to obtain each
necessary approval of or consent to consummate the Merger. Old Kent
shall provide Grand Premier with reasonable opportunities to review
and comment upon such documents before filing and to make such
amendments and file such supplements thereto as Grand Premier may
reasonably request. Old Kent shall provide Grand Premier with copies
of all material correspondence received from these agencies and all
material responsive correspondence sent to these agencies.
5.12 MISCELLANEOUS AGREEMENTS AND CONSENTS. Subject to the
terms and conditions of this Plan of Merger, each of the parties shall
use all commercially reasonable efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, all things necessary,
proper, or advisable under applicable laws and regulations to
consummate and make effective the Merger. Old Kent and Grand Premier
will use all commercially reasonable efforts to obtain consents of all
third parties and governmental bodies necessary or desirable for the
consummation of the Merger.
5.13 ACCESS AND INVESTIGATION. For the purpose of permitting an
examination of one party by the other's officers, attorneys,
accountants, and representatives, each party shall:
5.13.1 ACCESS. Permit, and shall cause each of their
respective subsidiaries to permit, full access to their
respective properties, books, and records at reasonable times to
the other party.
5.13.2 COOPERATION. Use all commercially reasonable
efforts to cause its and each of their respective subsidiaries'
officers, directors, employees, accountants, and attorneys to
cooperate fully, for the purpose of permitting a complete and
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detailed examination of such matters by the other party's
officers, attorneys, accountants, and representatives.
5.13.3 INFORMATION. Furnish to the other, upon
reasonable request, any information and documents reasonably
requested respecting its and each of its subsidiaries'
properties, assets, business, and affairs; PROVIDED, that a party
need not furnish such information or documents if such action
would result in the waiver of an attorney-client or other
privilege and the party requesting the information is advised, by
the other party, that the information is not being furnished for
that reason.
5.13.4 CONSENTS. Each of Old Kent and Grand Premier
acknowledges that certain information may not be disclosed by the
other without the prior written consent of persons not affiliated
with that party. If such information is requested, then the other
party shall use all commercially reasonable efforts to obtain
such prior consent and shall not be required to disclose such
information unless and until such prior consent has been
obtained.
5.13.5 RETURN AND RETENTION. In the event of
termination of this Plan of Merger, Old Kent and Grand Premier
each agree to promptly return to the other party or to destroy
all written materials furnished to it by the other party and the
other party's subsidiaries, and all copies, notes, and summaries
of such written materials. Old Kent and Grand Premier each agree
to preserve intact all such materials that are returned to them
for a period of not less than six years from the termination of
this Plan of Merger.
5.14 CONFIDENTIALITY. Except as provided below, Old Kent and
Grand Premier each agree:
5.14.1 TREATMENT; RESTRICTED ACCESS. All information
furnished to the other party pursuant to this Plan of Merger
shall be treated as strictly confidential and shall not be
disclosed to any other person, natural or corporate, except for
its employees, attorneys, accountants, regulators, and financial
advisers who are reasonably believed to have a need for such
information in connection with the Merger.
5.14.2 NO OTHER USE. No party shall make any use,
other than related to the Merger, of any information it may come
to know as a direct result of a disclosure by the other party,
its subsidiaries, directors, officers, employees, attorneys,
accountants, or advisers or that may come into its possession
from any other confidential source during the course of its
investigation.
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5.14.3 EXCEPTED INFORMATION. The provisions of this
Section shall not preclude Old Kent or Grand Premier, or their
respective subsidiaries, from using or disclosing information
that is readily ascertainable from public information or trade
sources, known by it before the commencement of discussions
between the parties or subsequently developed by it or its
subsidiaries independent of any investigation under this Plan of
Merger, received from any other person who is not affiliated with
a party and who is not under any obligation to keep such
information confidential, or reasonably required to be included
in any filing or application required by any governmental or
regulatory agency in connection with this Plan of Merger,
provided that upon a reasonable request of a party demonstrating
the need for confidentiality, all commercially reasonable efforts
are made to obtain confidential treatment of such information
from such governmental or regulatory agency.
5.14.4 PROHIBIT INSIDER TRADING. Old Kent and Grand
Premier shall each take responsible steps to assure that any
person who receives nonpublic information concerning the Merger
or the other party will treat the information confidentially as
provided in this Section and not directly or indirectly buy or
sell, or advise or encourage other persons to buy or sell, the
other party's stock until such information is properly disclosed
to the public.
5.15 ENVIRONMENTAL INVESTIGATION. Old Kent shall be permitted
to conduct an environmental assessment of each parcel of Grand
Premier's Real Property and Premises and, at Old Kent's option, (a) to
the extent permitted by the current owners thereof, any other real
estate formerly owned by Grand Premier or any of its subsidiaries, and
(b) any other real estate acquired by any of Grand Premier's
subsidiaries in satisfaction of a debt previously contracted. As to
each such property:
5.15.1 PRELIMINARY ENVIRONMENTAL ASSESSMENTS. Old
Kent may, at its expense, engage an environmental consultant to
conduct a preliminary ("Phase I") assessment of the property.
Grand Premier and Grand Premier's subsidiaries shall provide
reasonable assistance, including site access, a knowledgeable
contact person, and documentation relating to the real estate and
any prior environmental investigations or reports, to the
consultant for purposes of conducting the Phase I assessments.
5.15.2 ENVIRONMENTAL RISKS. If there are any facts or
conditions identified in a Phase I assessment that Old Kent
reasonably believes could pose a current or future risk of a
liability, interference with use, or diminution of value of the
property that could be material, then Old Kent shall identify
that risk to Grand Premier, identify the facts or conditions
underlying that risk, and provide Grand Premier with a copy of
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the Phase I assessment for that property (an "Environmental
Risk").
5.15.3 PHASE II AND III WORK. Old Kent may obtain one
or more estimates of the proposed scope of work and cost of any
further environmental investigation, remediation, or other
follow-up work it reasonably considers necessary or appropriate
to assess and, if necessary or appropriate, remediate an
Environmental Risk ("Phase II and III Work"). Old Kent shall
provide copies of those estimates to Grand Premier. The fees and
expenses of any Phase II and III Work shall be paid by Grand
Premier; PROVIDED that if this Plan of Merger is terminated after
performing some or all of such Phase II and III Work, unless it
has been terminated by Old Kent as a result of a breach of this
Plan of Merger by Grand Premier, Old Kent shall promptly
reimburse Grand Premier for one-half of the costs of such Phase
II and III Work; and provided further that Grand Premier shall be
obligated to contribute only to such removal or remedial actions
as are required to be undertaken by an owner of property in order
to avoid material risk under or comply with applicable
Environmental Laws (including the attainment of applicable
cleanup standards) and provided further that Grand Premier's
maximum contribution to the cost of any Phase II or III Work
shall not exceed $250,000. Old Kent and Grand Premier shall
cooperate in the review, approval, and implementation of all work
plans for Phase II and III Work. All work plans for any Phase II
and III Work shall be mutually satisfactory to Old Kent and Grand
Premier. Mutually agreed upon Phase II and III Work shall be
undertaken and completed as quickly as possible and shall be
completed prior to the Closing, unless otherwise agreed by Old
Kent and Grand Premier. If any removal or remediation actions
required by applicable Environmental Laws (including the
attainment of applicable cleanup standards) or necessary to avoid
material risk under applicable Environmental Laws would entail a
material cost to complete, Old Kent and Grand Premier shall
discuss a mutually acceptable modification to this Plan of
Merger.
5.15.4 OLD KENT'S TERMINATION RIGHTS. If (a) Old Kent
and Grand Premier are unable to agree upon a course of action to
complete any Phase II and III Work and/or a mutually acceptable
modification to this Plan of Merger, and (b) Old Kent cannot be
reasonably assured that the after-tax cost of the sum of (i) the
actual cost of all investigative and remedial or other corrective
actions or measures taken pursuant to Section 5.15.3 (PHASE II
AND III WORK); (ii) the estimated cost of all investigative
actions and remedial or other corrective actions or measures not
undertaken but required by Environmental Laws, or necessary to
avoid future exposure to material liability under Environmental
Laws; and (iii) all diminutions of the value of such properties;
in the aggregate will not exceed $3,000,000, then Old Kent may
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terminate this Plan of Merger as provided in Section 8.3.2
(ENVIRONMENTAL RISKS).
5.16 IMPLEMENTATION AGREEMENTS. Grand Premier shall use all
commercially reasonable efforts to obtain, as soon as practicable
after the date of this Plan of Merger, executed implementation
agreements (in the form previously agreed to by Old Kent and Grand
Premier) to the existing change of control agreements providing for,
among other things, mutually agreeable interpretations of such
agreements, procedures for implementing such agreements, and a
provision for a general release, which shall only become effective
upon consummation of the Merger at the Effective Time (the
"Implementation Agreements").
5.17 GRAND PREMIER SAVINGS PLAN. Old Kent intends to terminate
the Grand Premier Savings Plan after the Effective Time. Such
termination shall only occur if the Merger is consummated, and it
shall become effective at such time as may be determined by Old Kent.
Grand Premier shall take all reasonable steps requested by Old Kent
prior to the Effective Time to effect such termination following the
Effective Time; PROVIDED that Grand Premier shall not be required to
incur any material cost or take any irrevocable action in connection
with its obligations under this Section.
5.18 ACCOUNTING AND TAX TREATMENT. Prior to the Effective Time,
Old Kent and Grand Premier each agree not to take any action that
would prevent Old Kent from qualifying, or materially increase the
risk of disqualifying, the Merger as a pooling-of-interests for
accounting purposes or as a "reorganization" within the meaning of
Section 368(a) of the Internal Revenue Code; PROVIDED that nothing in
this Plan of Merger shall limit Old Kent's ability to exercise its
rights under the Option Agreement. Old Kent and Grand Premier each
agree to take such actions as may be reasonably required to negate the
impact of any past or future actions taken prior to the Effective Time
that might adversely impact the ability of Old Kent to treat the
Merger as a pooling-of-interests. Old Kent shall continue its current
practice of due care with respect to matters that could impact the
ability to account for the Merger as a pooling-of-interests and shall
consult with its independent accountants with respect to such matters.
5.19 PUBLIC ANNOUNCEMENTS. Old Kent and Grand Premier shall
cooperate with each other in the development and distribution of all
news releases and other public information disclosures with respect to
this Plan of Merger. Neither Old Kent nor Grand Premier shall issue
any news releases with respect to this Plan of Merger or the Merger
unless such news releases have been mutually agreed upon by the
parties, except as required by law.
5.20 YEAR 2000 PREPARATIONS. Old Kent, Grand Premier, and Grand
Premier's subsidiaries shall each continue to use all commercially
reasonable efforts to implement their respective Year 2000 plans in
accordance with applicable laws, regulations, guidelines, and
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issuances from regulators having jurisdiction, whether now or later in
effect. Old Kent, Grand Premier, and Grand Premier's subsidiaries
shall coordinate any remaining planning and implementation of their
respective Year 2000 plans. Grand Premier and its subsidiaries shall
consult with Old Kent before purchasing or installing, for the purpose
of becoming Year 2000 Ready, any new Year 2000 Assets having an
individual or aggregate purchase price of $100,000 or more.
ARTICLE VI - CONDITIONS PRECEDENT TO OLD KENT'S OBLIGATIONS
All obligations of Old Kent and MergerSub under this Plan of
Merger are subject to the fulfillment (or waiver in writing by a duly
authorized officer of Old Kent), prior to or at the Closing, of each
of the following conditions:
6.1 RENEWAL OF REPRESENTATIONS AND WARRANTIES, ETC.
6.1.1 REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Grand Premier contained in this
Plan of Merger shall be true, correct and complete when made and
as of the Closing as if made at and as of such time (without
regard to any update of the Grand Premier Disclosure Statement),
except (a) as expressly contemplated or permitted by this Plan of
Merger; (b) for representations and warranties that relate to a
time or times other than the Closing and that were or will be
true, correct and complete at such time or times; and (c) where
the failure or failures of such representations and warranties to
be so true, correct, and complete, either individually or in the
aggregate, does not result or would not result in a Material
Adverse Effect.
6.1.2 COMPLIANCE WITH AGREEMENTS. Grand Premier shall
have performed and complied with all agreements, conditions, and
covenants required by this Plan of Merger to be performed or
complied with by Grand Premier prior to or at the Closing in all
material respects.
6.1.3 CERTIFICATES. Compliance with Sections 6.1.1
(REPRESENTATIONS AND WARRANTIES) and 6.1.2 (COMPLIANCE WITH
AGREEMENTS) shall be evidenced by one or more certificates signed
by appropriate officers of Grand Premier, dated as of the date of
the Closing, certifying the foregoing in such detail as Old Kent
may reasonably request.
6.2 OPINION OF LEGAL COUNSEL. Grand Premier shall have
delivered to Old Kent an opinion of Schiff Hardin & Waite, counsel for
Grand Premier, dated as of the date of the Closing and substantially
in the form contained in Exhibit G, with only such changes as may be
reasonably satisfactory to counsel for Old Kent.
6.3 REQUIRED REGULATORY APPROVALS. Old Kent and MergerSub shall
have received all such approvals, consents, authorizations, and
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licenses of all regulatory and other governmental and self-regulatory
authorities having jurisdiction as may be required to permit the
performance by Grand Premier, and Old Kent and MergerSub of their
respective obligations under this Plan of Merger and the consummation
of the Merger, without the imposition of non-standard conditions on
approval that are not reasonably acceptable to Old Kent.
6.4 STOCKHOLDER APPROVAL. The holders of the requisite number
of shares of Grand Premier Common Stock shall have approved this Plan
of Merger.
6.5 ORDER, DECREE, ETC. Neither Old Kent, MergerSub, nor Grand
Premier shall be subject to any order, decree, or injunction of a
court or agency of competent jurisdiction that enjoins or prohibits
the consummation of the Merger.
6.6 TAX MATTERS. Old Kent shall have received a tax opinion
from its counsel, reasonably satisfactory in form and substance to Old
Kent, substantially to the effect that:
6.6.1 REORGANIZATION. The acquisition of
substantially all of the assets of Grand Premier by Old Kent
solely in exchange for Old Kent Capital Stock and the assumption
by Old Kent of liabilities of Grand Premier will constitute a
reorganization within the meaning of Section 368(a) of the
Internal Revenue Code, and Old Kent and Grand Premier will each
be "a party to a reorganization" within the meaning of Section
368(b) of the Internal Revenue Code.
6.6.2 TAX BASIS OF ASSETS. The basis of the Grand
Premier assets in the hands of Old Kent will be the same as the
basis of those assets in the hands of Grand Premier immediately
prior to the Merger.
6.6.3 NO GAIN OR LOSS. No gain or loss will be
recognized by Old Kent on the constructive acquisition by Old
Kent of substantially all of the assets of Grand Premier in
exchange for Old Kent Capital Stock and the assumption by Old
Kent of the liabilities of Grand Premier.
6.6.4 HOLDING PERIOD. The holding period of the
assets of Grand Premier in the hands of Old Kent will include the
holding period during which such assets were held by Grand
Premier.
The tax opinion shall be supported by one or more fact certificates or
affidavits in such form and content as may be reasonably requested by
Old Kent's counsel from Grand Premier and its subsidiaries.
6.7 REGISTRATION STATEMENT. The Registration Statement shall
have been declared effective by the SEC and shall not be subject to a
stop order or any threatened stop order.
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6.8 CERTIFICATE AS TO OUTSTANDING SHARES. Old Kent shall have
received one or more certificates dated as of the Closing date and
signed by the secretary of Grand Premier on behalf of Grand Premier,
and by the transfer agent for Grand Premier Common Stock, certifying
(a) the total number of shares of each class of Grand Premier Capital
Stock issued and outstanding as of the close of business on the day
immediately preceding the Closing; and (b) with respect to the
secretary's certification, the number of shares of Grand Premier
Capital Stock, if any, that are issuable on or after that date, all in
such form as Old Kent may reasonably request.
6.9 CHANGE OF CONTROL WAIVERS. Old Kent shall have received
evidence of the consents or other waivers of any material rights and
the waiver of the loss of any material rights that may be triggered by
the change of control of Grand Premier upon consummation of the Merger
under (a) any agreement, contract, mortgage, deed of trust, lease,
commitment, indenture, note, or other instrument, under which the
failure to obtain such consent or waiver is reasonably likely to have
a Material Adverse Effect on Grand Premier; and (b) each contract
identified in Exhibit I (collectively, the "Designated Contracts");
all in form and substance reasonably satisfactory to Old Kent.
6.10 POOLING ASSURANCES. Old Kent shall have received a letter
addressed to Old Kent and Grand Premier, from Grand Premier's
independent accountants, as of a date reasonably approximate to the
date of the Closing, to the effect that, as of such date, Grand
Premier is eligible to participate in a pooling-of-interests
combination and a letter from Old Kent's independent accountants,
satisfactory in form and substance, to the effect that (based in part
on the letter from Grand Premier's independent accountants) the Merger
should be treated as a pooling-of-interests for accounting and
financial reporting purposes, subject to satisfaction of post-Merger
conditions. Grand Premier and Old Kent agree to provide their
respective independent public accountants with such information and
documentation as may be reasonably requested for this purpose.
6.11 YEAR 2000 DISRUPTIONS. Grand Premier's and its
subsidiaries' Year 2000 Assets shall be Year 2000 Ready in all
material respects and there shall be no failure of the Year 2000
Assets that causes material errors or disruptions in Grand Premier's
or its subsidiaries' respective businesses or customer service.
ARTICLE VII - CONDITIONS PRECEDENT TO GRAND PREMIER'S OBLIGATIONS
All obligations of Grand Premier under this Plan of Merger are
subject to the fulfillment (or waiver in writing by a duly authorized
officer of Grand Premier), prior to or at the Closing, of each of the
following conditions:
7.1 RENEWAL OF REPRESENTATIONS AND WARRANTIES, ETC.
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7.1.1 REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Old Kent contained in this Plan
of Merger shall be true, correct, and complete when made and as
of the Closing as if made at and as of such time (without regard
to any update of the Old Kent Disclosure Statement), except (a)
as expressly contemplated or permitted by this Plan of Merger;
(b) for representations and warranties that relate to a time or
times other than the Effective Time and that were or will be
true, correct, and complete at such time or times; and (c) where
the failure or failures of such representations and warranties to
be so true, correct, and complete, either individually or in the
aggregate, does not result or would not result in a Material
Adverse Effect.
7.1.2 COMPLIANCE WITH AGREEMENTS. Old Kent and
MergerSub shall have performed and complied with all agreements,
conditions, and covenants required by this Plan of Merger to be
performed or complied with by Old Kent and MergerSub prior to or
at the Closing in all material respects.
7.1.3 CERTIFICATES. Compliance with Sections 7.1.1
(REPRESENTATIONS AND WARRANTIES) and 7.1.2 (COMPLIANCE WITH
AGREEMENTS) shall be evidenced by one or more certificates signed
by appropriate officers of Old Kent, dated as of the date of the
Closing, certifying the foregoing in such detail as Grand Premier
may reasonably request.
7.2 OPINION OF LEGAL COUNSEL. Old Kent shall have delivered to
Grand Premier an opinion of Warner Norcross & Judd llp, counsel for
Old Kent, dated as of the date of the Closing and substantially in the
form contained in Exhibit H, with only such changes as may be
reasonably satisfactory to counsel for Grand Premier.
7.3 REQUIRED REGULATORY APPROVALS. Grand Premier, Old Kent, and
MergerSub shall have received all such approvals, consents,
authorizations, and licenses of all regulatory and other governmental
authorities having jurisdiction as may be required to permit the
performance by Grand Premier, Old Kent, and MergerSub of their
respective obligations under this Plan of Merger and the consummation
of the Merger.
7.4 STOCKHOLDER APPROVAL. The holders of the requisite number
of shares of Grand Premier Common Stock shall have approved this Plan
of Merger.
7.5 ORDER, DECREE, ETC. Neither Old Kent, MergerSub, nor Grand
Premier shall be subject to any applicable order, decree, or
injunction of a court or agency of competent jurisdiction that enjoins
or prohibits the consummation of the Merger.
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7.6 TAX MATTERS. Grand Premier shall have received a tax
opinion from Old Kent's counsel, reasonably satisfactory in form and
substance to Grand Premier, substantially to the effect that:
7.6.1 REORGANIZATION. The acquisition of
substantially all of the assets of Grand Premier by Old Kent
solely in exchange for Old Kent Capital Stock and the assumption
by Old Kent of liabilities of Grand Premier will constitute a
reorganization within the meaning of Section 368(a) of the
Internal Revenue Code, and Old Kent and Grand Premier will each
be "a party to a reorganization" within the meaning of Section
368(b) of the Internal Revenue Code.
7.6.2 NO GAIN OR LOSS. No gain or loss will be
recognized by the holders of Grand Premier Capital Stock upon the
receipt of Old Kent Capital Stock in exchange for all of their
shares of Grand Premier Capital Stock, except to the extent of
any cash received in lieu of a fractional share of Old Kent
Capital Stock.
7.6.3 TAX BASIS OF STOCK. The tax basis of the Old
Kent Capital Stock to be received by the holders of Grand Premier
Capital Stock will, in each instance, be the same as the basis of
the respective shares of Grand Premier Capital Stock surrendered
in exchange therefor.
7.6.4 HOLDING PERIOD. The holding period of the Old
Kent Capital Stock received by the holders of Grand Premier
Capital Stock will, in each instance, include the period during
which the Grand Premier Capital Stock surrendered in exchange
therefor was held, PROVIDED, that the Grand Premier Capital Stock
was, in each instance, held as a capital asset in the hands of
the holder of Grand Premier Capital Stock at the Effective Time.
The tax opinion shall be supported by one or more fact certificates or
affidavits in such form and content as may be reasonably requested by
Old Kent's counsel from Old Kent and its subsidiaries.
7.7 REGISTRATION STATEMENT. The Registration Statement shall
have been declared effective by the SEC and shall not be subject to a
stop order or any threatened stop order.
7.8 FAIRNESS OPINION. Grand Premier shall have received an
opinion from Credit Suisse First Boston, reasonably acceptable to
Grand Premier, as of a date approximately the date of the Prospectus
and Proxy Statement, to the effect that the terms of the Merger are
fair to the holders of Grand Premier Common Stock from a financial
point of view as of that date and such opinion shall not have been
subsequently withdrawn; PROVIDED, that Grand Premier shall have used
all commercially reasonable efforts to obtain such a fairness opinion.
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7.9 LISTING OF SHARES. The shares of Old Kent Common Stock
that shall be issued to the holders of Grand Premier Common Stock upon
consummation of the Merger shall have been authorized for listing on
the NYSE upon official notice of issuance.
ARTICLE VIII - ABANDONMENT OF MERGER
This Plan of Merger may be terminated and the Merger abandoned at
any time prior to the Effective Time (notwithstanding that approval of
this Plan of Merger by the stockholders of Grand Premier may have
previously been obtained) as follows:
8.1 MUTUAL ABANDONMENT. By mutual consent of the boards of
directors, or duly authorized committees thereof, of Old Kent and
Grand Premier.
8.2 UPSET DATE. By either Old Kent or Grand Premier if the
Merger shall not have been consummated on or before April 30, 2000.
8.3 OLD KENT'S RIGHTS TO TERMINATE. By Old Kent under any of
the following circumstances:
8.3.1 FAILURE TO SATISFY CLOSING CONDITIONS. If any
of the conditions specified in Article VI have not been met or
waived by Old Kent, at such time as such condition can no longer
be satisfied notwithstanding Old Kent's commercially reasonable
efforts to comply with those covenants given by Old Kent in this
Plan of Merger.
8.3.2 ENVIRONMENTAL RISKS. If Old Kent has given
Grand Premier notice of an unacceptable Environmental Risk as
provided in Section 5.15.4 (OLD KENT'S TERMINATION RIGHTS).
8.3.3 POOLING QUALIFICATION. At any time after Old
Kent's independent accountants have advised Old Kent that they
are not of the opinion that the Merger is likely to qualify for
treatment as a pooling-of-interests for accounting and financial
reporting purposes; PROVIDED, that Old Kent shall not have taken
any action to knowingly disqualify the Merger as a pooling-of-
interests for accounting and financial reporting purposes;
PROVIDED FURTHER, that Grand Premier shall have a period of 30
days after notification by Old Kent to cure any condition that
would prevent the Merger from qualifying for treatment as a
pooling-of-interests for accounting and financial reporting
purposes.
8.3.4 APPROVAL OF GRAND PREMIER'S COMMON STOCKHOLDERS.
This Plan of Merger is not approved by the requisite vote of the
holders of Grand Premier Common Stock at the Stockholders'
Meeting.
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8.3.5 APPROVAL OF GRAND PREMIER'S SERIES C PREFERRED
STOCKHOLDERS. If Old Kent has the right to terminate this Plan
of Merger pursuant to Section 2.9 (APPROVAL OF GRAND PREMIER
SERIES C PREFERRED STOCK).
8.3.6 OCCURRENCE OF A FIDUCIARY EVENT. At any time
after there has occurred a Fiduciary Event.
8.3.7 MATERIAL ADVERSE EVENT. If there shall have
occurred one or more events that shall have caused or are
reasonably likely to cause a Material Adverse Effect on Grand
Premier.
8.3.8 GRAND PREMIER RIGHTS AGREEMENT. If there shall
have occurred any event triggering the distribution of Grand
Premier Rights under the Grand Premier Rights Agreement.
8.4 GRAND PREMIER'S RIGHTS TO TERMINATE. By Grand Premier under
any of the following circumstances:
8.4.1 UPSET CONDITION. If the Upset Condition exists
in accordance with Section 2.2 (UPSET PROVISION) during the time
period provided for in such Section.
8.4.2 FAILURE TO SATISFY CLOSING CONDITIONS. If any
of the conditions specified in Article VII have not been met or
waived by Grand Premier at such time as such condition can no
longer be satisfied notwithstanding Grand Premier's commercially
reasonable efforts to comply with those covenants given by Grand
Premier in this Plan of Merger.
8.4.3 APPROVAL OF GRAND PREMIER'S STOCKHOLDERS. This
Plan of Merger is not approved by the requisite vote of Grand
Premier's stockholders at the Stockholders' Meeting and Grand
Premier's board of directors has advised Old Kent that it, in
good faith, does not believe that such vote can be obtained
through all commercially reasonable further efforts.
8.4.4 MATERIAL ADVERSE EVENT. If there shall have
occurred one or more events that shall have caused or are
reasonably likely to cause a Material Adverse Effect on Old Kent.
8.5 EFFECT OF TERMINATION. In the event of termination of this
Plan of Merger by either Grand Premier or Old Kent as provided in this
Article, this Plan of Merger shall forthwith become void and have no
effect, and none of Grand Premier, Old Kent, any of their respective
subsidiaries, or any of their respective directors, officers, or
employees shall have any liability of any nature whatsoever under this
Plan of Merger, or in connection with the transactions contemplated by
this Plan of Merger (other than the Option Agreement), except that (a)
the Option Agreement and Sections 5.14 (CONFIDENTIALITY), 8.5 (EFFECT
OF TERMINATION), and 9.5 (EXPENSES), shall survive any termination of
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this Plan of Merger, and (b) notwithstanding anything to the contrary
contained in this Plan of Merger, neither Grand Premier, Old Kent, nor
MergerSub shall be relieved or released from any liabilities or
damages arising out of its breach of any provision of this Plan of
Merger.
ARTICLE IX - MISCELLANEOUS
Subject to the terms and conditions of this Plan of Merger, Old
Kent, MergerSub, and Grand Premier further agree as follows:
9.1 "MATERIAL ADVERSE EFFECT" DEFINED. As used in this Plan of
Merger, the term "Material Adverse Effect" means any change or effect
that, individually or when taken together with all other such changes
or effects that have occurred prior to the date of determination of
the occurrence of the Material Adverse Effect, has or is reasonably
likely to have a material negative impact on (a) the business, assets,
financial condition, results of operations, or value of Old Kent and
its subsidiaries, taken as a whole, or, as the case may be, Grand
Premier and its subsidiaries, taken as a whole; or (b) the ability of
Old Kent or Grand Premier, as the case may be, to satisfy the
applicable closing conditions or consummate the Merger or perform its
obligations under the Option Agreement. Notwithstanding the above, the
impact of the following shall not be included in any determination of
a Material Adverse Effect: (a) changes in GAAP, generally applicable
to financial institutions and their holding companies, however,
excluding from this exception any material change to
pooling-of-interests accounting rules or interpretations; (b) actions
and omissions of a party (or any of its subsidiaries) taken with the
prior written consent of the other party; (c) changes in economic
conditions (including changes in the level of interest rates)
generally affecting financial institutions; (d) fees and expenses
reasonably related to this transaction (such as any additional
insurance coverages, employment and consulting services, legal,
accounting, and investment banking fees and expenses, and severance
and retention provisions); and (e) the failure of public utilities,
multi-user data transmission networks, interchanges, switches, and
other problems related to the Year 2000 Problem affecting the banking
industry as a whole.
9.2 "KNOWLEDGE" DEFINED. As used in this Plan of Merger, the
term "knowledge" means the actual knowledge of any director or officer
(as that term is defined in Rule 16a-1 of the Exchange Act) of Grand
Premier or Old Kent, as the case may be. Notwithstanding the previous
sentence, the"knowledge" of Grand Premier as of the date of this Plan
of Merger shall not include one executive officer of Grand Premier
previously identified by Grand Premier to Old Kent.
9.3 NONSURVIVAL OF REPRESENTATIONS, WARRANTIES, AND AGREEMENTS.
None of the representations, warranties, covenants, and agreements in
this Plan of Merger or in any other agreement or instrument delivered
pursuant to this Plan of Merger, including any rights arising out of
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any breach of such representations, warranties, covenants, and
agreements, shall survive the Effective Time, except for the Option
Agreement, Grand Premier Affiliate Agreements, Implementation
Agreements, and those covenants and agreements contained herein and
therein that, by their terms, apply or are to be performed in whole or
in part after the Effective Time.
9.4 AMENDMENT. Subject to applicable law, this Plan of Merger
may be amended, modified, or supplemented by, and only by, the written
agreement of Old Kent, MergerSub, and Grand Premier, or by the
respective officers thereunto duly authorized, at any time prior to
the Effective Time. Without limitation of the foregoing, following the
approval of this Plan of Merger by the stockholders of Grand Premier,
no such change shall (a) alter or change the amount or kind of
consideration to be issued to holders of Grand Premier's capital stock
as contemplated in this Plan of Merger, (b) adversely affect the
anticipated tax treatment of the Merger on the holders of Grand
Premier Capital Stock, or (c) unduly impede or delay consummation of
the transactions contemplated by this Plan of Merger.
9.5 EXPENSES. Except as otherwise provided in this Plan of
Merger, Grand Premier and Old Kent shall each pay its own expenses
incident to preparing for, entering into, and carrying out this Plan
of Merger, and incident to the consummation of the Merger. Each party
shall pay the fees and expenses of any investment banker engaged by
that party. The costs of all filing fees pertaining to the
Registration Statement shall be paid by Old Kent. The costs of
printing and mailing the Prospectus and Proxy Statement shall be paid
by Grand Premier; PROVIDED that if this Plan of Merger is terminated
after the mailing of the Prospectus and Proxy Statement, unless it has
been terminated by Old Kent as a result of a breach of this Plan of
Merger by Grand Premier, Old Kent shall promptly reimburse Grand
Premier for one-half of the costs of printing and mailing the
Prospectus and Proxy Statement.
9.6 SPECIFIC ENFORCEMENT. The parties each agree that,
consistent with the terms and conditions of this Plan of Merger, in
the event of a breach by a party to this Plan of Merger, money damages
will be inadequate and not susceptible of computation because of the
unique nature of Grand Premier, the Grand Premier Banks, and the
Merger. Therefore, the parties each agree that a federal or state
court of competent jurisdiction shall have authority, subject to the
rules of law and equity, to specifically enforce the provisions of
this Plan of Merger by injunctive order or such other equitable means
as may be determined in the court's discretion.
9.7 NO JURY. Old Kent and Grand Premier each waive their right
to a trial by jury in connection with the resolution of any dispute
that may arise among them relating to this Plan of Merger.
9.8 WAIVER. Any of the terms or conditions of this Plan of
Merger may be waived in writing at any time by action taken by the
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board of directors of a party, a duly authorized committee thereof, or
a duly authorized officer of such party. The failure of any party at
any time or times to require performance of any provision of this Plan
of Merger shall in no manner affect such party's right at a later time
to enforce the same provision. No waiver by any party of any
condition, or of the breach of any term, covenant, representation, or
warranty contained in this Plan of Merger, whether by conduct or
otherwise, in any one or more instances shall be deemed to be or
construed as a further or continuing waiver of any such condition or
breach, or as a waiver of any other condition or of the breach of any
other term, covenant, representation, or warranty.
9.9 NOTICES. All notices, requests, demands, and other
communications under this Plan of Merger shall be in writing and shall
be deemed to have been duly given and effective immediately if
delivered or sent and received by a fax transmission (if receipt by
the intended recipient is confirmed by telephone and if hard copy is
delivered by overnight delivery service the next day), a hand
delivery, or a nationwide overnight delivery service (all fees
prepaid) to the following addresses:
IF TO OLD KENT OR MERGERSUB: WITH A COPY TO:
Old Kent Financial Corporation Warner Norcross & Judd LLP
Attention: Mary E. Tuuk, Senior Vice Attention: Mr. Gordon R. Lewis
President and Legal Coordinator 900 Old Kent Building
111 Lyon Street, N.W., Suite 100 111 Lyon Street, N.W.
Grand Rapids, Michigan 49503 Grand Rapids, Michigan
49503-2489
Facsimile: (616) 771-4698 Facsimile: (616) 752-2500
Telephone: (616) 771-5272 Telephone: (616) 752-2000
IF TO GRAND PREMIER: WITH A COPY TO:
Grand Premier Financial, Inc. Schiff Hardin & Waite
Attention: Richard L. Geach Attention: Gary L. Mowder
President and Chief Executive Officer 6600 Sears Tower
486 W. Liberty Street Chicago, IL 60606
Facsimile: (847) 487-0455 Facsimile: (312) 285-5600
Telephone: (847) 487-1818 Telephone: (312) 258-5514
9.10 GOVERNING LAW. This Plan of Merger shall be governed,
construed, and enforced in accordance with the laws of the State of
Michigan, without regard to principles of conflicts of laws, except to
the extent that federal law and the law of the State of Delaware shall
apply to certain matters of securities and corporate law relating to
the Grand Premier and the Merger.
9.11 ENTIRE AGREEMENT. This Plan of Merger (including all
exhibits and ancillary agreements described in this Plan of Merger)
supersedes all prior agreements between the parties with respect to
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its subject matter and constitutes (along with the agreements and
documents referred to in this Plan of Merger) a complete and exclusive
statement of the terms of the agreement between the parties with
respect to its subject matter; except for matters set forth in any
written instrument concurrently or contemporaneously executed by the
parties. No party may assign any of its rights or obligations under
this Plan of Merger to any other person.
9.12 THIRD PARTY BENEFICIARIES. The terms and conditions of
this Plan of Merger shall inure to the benefit of and be binding upon
Old Kent, MergerSub, and Grand Premier and their respective
successors. Except to the extent provided in Section 2.8.3 (OPTION
PLANS ASSUMPTION) and Section 5.8 (INDEMNIFICATION AND INSURANCE),
nothing in this Plan of Merger, express or implied, is intended to
confer upon any person other than Old Kent, MergerSub, and Grand
Premier any rights, remedies, obligations, or liabilities under or by
reason of this Plan of Merger.
9.13 COUNTERPARTS. This Plan of Merger may be executed in one
or more counterparts, which taken together shall constitute one and
the same instrument. Executed counterparts of this Plan of Merger
shall be deemed to have been fully delivered and shall become legally
binding if and when executed signature pages are received by fax from
a party. If so delivered by fax, the parties agree to promptly send
original, manually executed copies by nationwide overnight delivery
service.
9.14 FURTHER ASSURANCES; PRIVILEGES. Each of Old Kent and Grand
Premier shall, at the request of the other, execute and deliver such
additional documents and instruments and take such other actions as
may be reasonably requested to carry out the terms and provisions of
this Plan of Merger.
9.15 HEADINGS, ETC. The article headings and section headings
contained in this Plan of Merger are inserted for convenience only and
shall not affect in any way the meaning or interpretation of this Plan
of Merger. With respect to any term, references to the singular form
of the word include its plural form and references to the plural form
of the word include its singular form.
9.16 CALCULATION OF DATES AND DEADLINES. Unless otherwise
specified, any period of time to be determined under this Plan of
Merger shall be deemed to commence at 12:01 a.m. on the first full day
after the specified starting date, event, or occurrence. Any deadline,
due date, expiration date, or period-end to be calculated under this
Plan of Merger shall be deemed to end at 5 p.m. on the last day of the
specified period. The time of day shall be determined with reference
to the then current local time in Grand Rapids, Michigan.
9.17 SEVERABILITY. If any term, provision, covenant, or
restriction contained in this Plan of Merger is held by a final and
unappealable order of a court of competent jurisdiction to be invalid,
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void, or unenforceable, then the remainder of the terms, provisions,
covenants, and restrictions contained in this Plan of Merger shall
remain in full force and effect, and shall in no way be affected,
impaired, or invalidated unless the effect would be to cause this Plan
of Merger to not achieve its essential purposes.
* * *
In Witness Whereof, the undersigned parties have duly executed
and acknowledged this Plan of Merger as of the date first written
above.
OLD KENT FINANCIAL CORPORATION
By /s/ Mark F. Furlong
--------------------------------
Mark F. Furlong, Executive Vice
President and Chief Financial
Officer
OK MERGER CORPORATION
By /s/ Mark F. Furlong
--------------------------------
Mark F. Furlong, President
GRAND PREMIER FINANCIAL, INC.
By /s/ Richard L. Geach
--------------------------------
Richard L. Geach, President and
Chief Executive Officer
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<PAGE>
EXHIBIT 10.1
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STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is made as of
September 9, 1999, by and between OLD KENT FINANCIAL CORPORATION, a
Michigan corporation ("Grantee"), and GRAND PREMIER FINANCIAL, INC., a
Delaware corporation ("Issuer").
As a condition to, and contemporaneous with, the execution of
this Agreement, the parties are entering into an Agreement and Plan of
Merger dated as of September 9, 1999 (the "Plan of Merger"). In
consideration therefor, and as an inducement to Grantee to pursue the
transactions contemplated by the Plan of Merger, Issuer has agreed to
grant Grantee the Option (as defined below). The board of directors of
Issuer has approved the grant of the Option and the Plan of Merger.
Capitalized terms used but not defined in this Agreement shall have
the meanings given to those terms in the Plan of Merger.
In consideration of the foregoing, and the mutual covenants and
agreements set forth in this Agreement and in the Plan of Merger, the
parties agree:
1. GRANT OF OPTION.
(a) Issuer hereby grants to Grantee an unconditional,
irrevocable option (the "Option") to purchase, subject to the terms of
this Agreement, up to 4,469,722 fully paid and nonassessable shares of
Issuer Common Stock, par value $0.01 ("Common Stock"), at a price per
share equal to $15.00; PROVIDED that in the event Issuer issues or
agrees to issue any shares of Common Stock prior to an Exercise
Termination Event (or such later date as provided in Section 10) at a
price per share less than $15.00 (as adjusted pursuant to Section
5(b)) (other than as permitted under the Plan of Merger), such price
shall be equal to such lesser price (as adjusted, if applicable, the
"Option Price") for each share of Common Stock then remaining subject
to the Option; FURTHER PROVIDED, that in no event shall the number of
shares for which this Option is exercisable, together with the number
of shares owned by Grantee other than shares held by Grantee in a
fiduciary capacity for a customer as to which it has no beneficial
interest ("Fiduciary Shares"), exceed 19.99% of the Issuer's issued
and outstanding shares of Common Stock without giving effect to any
shares subject or issued pursuant to the Option.
(b) The number of shares of Common Stock subject to
the Option shall be increased or decreased, as appropriate, in the
event that any additional shares of Common Stock are issued or
otherwise become outstanding (other than pursuant to this Agreement or
pursuant to an event described in Section 5(a) of this Agreement) or
existing shares are redeemed, retired or otherwise become no longer
-1-
outstanding after the date of this Agreement so that, after any such
issuance, redemption or retirement, together with the number of shares
previously issued pursuant to this Agreement or otherwise owned by
Grantee other than Fiduciary Shares, the number of shares of Common
Stock subject to the Option equals 19.99% of the number of shares of
Common Stock then issued and outstanding without giving effect to any
shares subject or issued pursuant to the Option. Nothing contained in
this Section 1(b) or elsewhere in this Agreement shall be considered
to authorize Issuer to issue shares in breach of any provision of the
Plan of Merger.
2. EXERCISE OF OPTION.
(a) The holder or holders of the Option (the "Holder")
may exercise the Option, in whole or part, if and when at any time
both an Initial Triggering Event (as defined below) and a Subsequent
Triggering Event (as defined below) shall have occurred prior to the
occurrence of an Exercise Termination Event (as defined below),
PROVIDED that the Holder shall have sent notice of such exercise (as
required by Section 2(f)) within six months following such Subsequent
Triggering Event (or such later date as provided in Section 10).
(b) Each of the following shall be an "Exercise
Termination Event": (i) consummation of the Merger at the Effective
Time of the Merger; (ii) termination of the Plan of Merger in
accordance with the provisions thereof if such termination occurs
before the occurrence of an Initial Triggering Event; and (iii) the
passage of 18 months (or such longer period as provided in Section 10)
after termination of the Plan of Merger if such termination follows
the occurrence of an Initial Triggering Event. Notwithstanding
anything to the contrary in this Agreement: (i) the Option may not be
exercised at any time when Grantee shall be in material breach of any
of its covenants or agreements contained in the Plan of Merger such
that Issuer shall be entitled to terminate the Plan of Merger as a
result of such material breach; and (ii) this Agreement shall
automatically terminate upon the proper termination of the Plan of
Merger (x) by Issuer as a result of the material breach by Grantee of
its covenants or agreements contained in the Plan of Merger, or (y) by
Issuer or Grantee if the approval by any federal or state governmental
authority or regulatory or administrative agency or commission (each a
"Governmental Entity") necessary to consummate the Merger and the
other transactions contemplated by the Plan of Merger shall have been
denied by final nonappealable action of such agency or authority.
(c) The term "Initial Triggering Event" shall mean any
of the following events or transactions occurring on or after the date
of this Agreement:
(i) Issuer or any of its subsidiaries (an "Issuer
Subsidiary"), without having received Grantee's prior written
consent, shall have entered into an agreement to engage in an
Acquisition Transaction (as defined below) with any person (for
-2-
purposes of this Agreement, the term "person" has the meaning
given that term in Sections 3(a)(9) and 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"
), and the rules and regulations thereunder) other than Grantee
or any of its subsidiaries (a "Grantee Subsidiary");
(ii) the board of directors of Issuer shall have
recommended that the stockholders of Issuer approve or accept any
Acquisition Transaction other than the Merger;
(iii) any person other than Grantee or any
Grantee Subsidiary shall have acquired beneficial ownership or
the right to acquire beneficial ownership of 15% or more of the
outstanding shares of Common Stock (for purposes of this
Agreement, the term "beneficial ownership" has the meaning given
that term in Section 13(d) of the Exchange Act and the rules and
regulations thereunder) PROVIDED, that this Section 2(c)(iii)
shall not be triggered (and it shall not constitute an Initial
Triggering Event) by any acquisition of Issuer Common Stock by
any person or entity specifically identified as being excluded
(under certain circumstances) from becoming an "Acquiring Person"
in Section 1(b) of the Rights Agreement dated as of July 8, 1996,
between Issuer and Grand Premier Trust and Investment, Inc.,
N.A., as successor to Premier Trust Services, Inc., as Rights
Agent (the "Rights Agreement") (before any relettering of the
subsections of the Rights Agreement contemplated by the amendment
of the Rights Agreement executed as of the date hereof) if such
acquisition of Issuer Common Stock by such person or entity would
not cause such person or entity to become an "Acquiring Person"
under the terms of the Rights Agreement;
(iv) the stockholders of Issuer shall have voted
and failed to approve the Plan of Merger and the Merger at a
meeting that was held for that purpose or any adjournment or
postponement thereof, or such meeting shall not have been held in
violation of the Plan of Merger or shall have been canceled prior
to termination of the Plan of Merger if, prior to such meeting
(or if such meeting shall not have been held or shall have been
canceled, prior to such termination), it shall have been publicly
announced or the stockholders of Issuer shall have been advised
that any person (other than Grantee or any Grantee Subsidiary)
shall have made, or shall have an intention to make, a proposal
to engage in an Acquisition Transaction;
(v) the board of directors of Issuer shall not
have recommended, or shall have withdrawn or modified (or
publicly announced its intention to withdraw or modify) in any
manner adverse in any respect to Grantee its recommendation that
the stockholders of Issuer approve the transactions contemplated
by the Plan of Merger at any meeting that was held for that
purpose, in anticipation of engaging in an Acquisition
Transaction (other than with Grantee or any Grantee Subsidiary)
-3-
or following a proposal to Issuer to engage in an Acquisition
Transaction, or Issuer or any Issuer Subsidiary shall have
authorized, recommended or proposed (or publicly announced or
advised its stockholders of its intention to authorize, recommend
or propose) an agreement to engage in an Acquisition Transaction
with any person other than Grantee or any Grantee Subsidiary;
(vi) any person other than Grantee or any Grantee
Subsidiary shall have filed with the Securities and Exchange
Commission ("SEC") a registration statement or tender offer
materials with respect to a potential exchange or tender offer
that would constitute an Acquisition Transaction (or filed a
preliminary proxy statement with the SEC with respect to a
potential vote by its stockholders to approve the issuance of
shares to be offered in such an exchange or tender offer);
(vii) Issuer shall have willfully breached any
covenant or obligation contained in the Plan of Merger in
anticipation of engaging in an Acquisition Transaction (other
than with Grantee or any Grantee Subsidiary), and following such
breach Grantee would be entitled to terminate the Plan of Merger;
(xiii) any person other than Grantee or any
Grantee Subsidiary shall have filed an application or notice with
the applicable Governmental Entity under the Bank Holding Company
Act of 1956, the Federal Deposit Insurance Act, the Illinois Bank
Holding Company Act of 1957, the Illinois Banking Act, or other
applicable state or federal banking laws or regulations, which
application or notice has been accepted for processing, for
approval to engage in an Acquisition Transaction; or
(xiv) a Fiduciary Event shall have occurred under
the Plan of Merger.
For purposes of this Agreement, "Acquisition Transaction" means: (a) a
merger or consolidation, or any similar transaction, involving Issuer
or any Issuer Subsidiary (other than mergers, consolidations or
similar transactions (i) involving solely Issuer and/or one or more
wholly-owned (except for directors' qualifying shares) Issuer
Subsidiary, PROVIDED, any such transaction is not entered into in
violation of the terms of the Plan of Merger or (ii) in which the
stockholders of Issuer immediately prior to the completion of such
transaction own at least 50% of the Common Stock of Issuer (or the
resulting or surviving entity in such transaction) immediately after
completion of such transaction, PROVIDED, any such transaction is not
entered into in violation of the terms of the Plan of Merger); (b) a
purchase, lease or other acquisition of all or a substantial part of
the assets or deposits of Issuer or Issuer Subsidiary; (c) a purchase
or other acquisition (including by way of merger, consolidation, share
exchange or otherwise) of securities representing 15% or more of the
voting power of Issuer or any Issuer Subsidiary; or (d) any
substantially similar transaction. For purposes of this Agreement,
-4-
"subsidiary" has the meaning given to the term "significant
subsidiary" in Rule 12b-2 under the Exchange Act. In this Agreement,
the phrase "in anticipation of engaging in an Acquisition Transaction"
shall include, without limitation, any action taken by Issuer's
officers or board of directors after any written or oral, authorized
or unauthorized, proposal or expression of interest has been
communicated to any member of Issuer's management or board of
directors concerning an Acquisition Transaction that in any way would
involve Issuer and such proposal or expression of interest has not
been withdrawn at the time of the action.
(d) The term "Subsequent Triggering Event" shall mean
either of the following events or transactions occurring after the
date of this Agreement:
(i) the acquisition by any person (other than
Grantee or any Grantee Subsidiary) of beneficial ownership of 25%
or more of the then outstanding Common Stock, PROVIDED, that this
Section 2(d)(i) shall not be triggered (and it shall not
constitute a Subsequent Triggering Event) by any acquisition of
Issuer Common Stock by any person or entity specifically
identified as being excluded (under certain circumstances) from
becoming an "Acquiring Person" in Section 1(b) of the Rights
Agreement dated as of July 8, 1996, between Issuer and Grand
Premier Trust and Investment, Inc., N.A., as successor to Premier
Trust Services, Inc., as Rights Agent (the "Rights Agreement")
(before any relettering of the subsections of the Rights
Agreement contemplated by the amendment of the Rights Agreement
executed as of the date hereof) if such acquisition of Issuer
Common Stock by such person or entity would not cause such person
or entity to become an "Acquiring Person" under the terms of the
Rights Agreement; or
(ii) occurrence of the Initial Triggering Event
described in clause (i) of Section 2(c), except that the
percentage referred to for purposes of defining "Acquisition
Transaction" in clause (c) of that definition shall be 25%.
(e) Issuer shall notify Grantee promptly in writing
of the occurrence of any Initial Triggering Event or Subsequent
Triggering Event (collectively, "Triggering Events"), it being
understood that the giving of such notice by Issuer shall not be a
condition to the right of Holder to exercise the Option.
(f) If Holder is entitled and wishes to exercise the
Option (or any portion thereof), it shall send to Issuer a written
notice (the date of such notice is referred to as the "Notice Date")
specifying: (i) the total number of shares it will purchase pursuant
to such exercise; and (ii) a place and date not earlier than three
business days nor later than 45 business days from the Notice Date for
the closing of such purchase (the "Closing Date"); PROVIDED, that if
prior notification to or approval of any Governmental Entity is
-5-
required in connection with such purchase, Holder shall promptly file
the required notice or application for approval, shall notify Issuer
of such filing, and shall expeditiously process the same and the
period of time that otherwise would run pursuant to this sentence
shall run instead from the date on which any required notification
periods have expired or been terminated or such approvals have been
obtained and any requisite waiting period or periods shall have
passed. Any exercise of the Option shall be considered to occur on the
Notice Date relating thereto.
(g) At the closing referred to in Section 2(f), Holder
shall (i) pay to Issuer the aggregate purchase price for the shares of
Common Stock purchased pursuant to the exercise of the Option in
immediately available funds by wire transfer to a bank account
designated by Issuer and (ii) present and surrender this Agreement to
Issuer at its principal executive offices; PROVIDED, that failure or
refusal of Issuer to designate such a bank account or accept surrender
of this Agreement shall not preclude Holder from exercising the
Option.
(h) At the closing, simultaneously with the delivery
of immediately available funds as provided in Section 2(g), Issuer
shall deliver to Holder a certificate or certificates representing the
number of shares of Common Stock purchased by Holder and, if the
Option should be exercised in part only, a new Option evidencing the
rights of Holder to purchase the balance of the shares subject to this
Option.
(i) Certificates for Common Stock delivered at a
closing under this Agreement may be endorsed with a restrictive legend
that shall read substantially as follows:
"The transfer of the shares represented by this certificate
is subject to certain provisions of an agreement, dated as
of September 9, 1999, between the registered holder hereof
and Issuer and to resale restrictions arising under the
Securities Act of 1933, as amended. A copy of such
agreement is on file at the principal office of Issuer and
will be provided to the holder hereof without charge upon
receipt by Issuer of a written request therefor."
It is understood and agreed that: (i) the reference to the resale
restrictions of the Securities Act of 1933, as amended (the
"Securities Act"), in the above legend shall be removed by delivery of
substitute certificate(s) without such reference if Holder shall have
delivered to Issuer a copy of a letter from the staff of the SEC, or
an opinion of counsel, in form and substance reasonably satisfactory
to Issuer, to the effect that such legend is not required for purposes
of the Securities Act; (ii) the reference to the provisions of this
Agreement in the above legend shall be removed by delivery of
substitute certificate(s) without such reference if the shares have
been sold or transferred in compliance with the provisions of this
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Agreement and under circumstances that do not require the retention of
such reference in the opinion of counsel to Holder; and (iii) the
legend shall be removed in its entirety if the conditions in the
preceding clauses (i) and (ii) are both satisfied. In addition, such
certificates shall bear any other legend as may be required by law.
(j) Upon the giving by Holder to Issuer of the written
notice of exercise of the Option provided for under Section 2(f) and
the tender of the applicable purchase price in immediately available
funds, Holder shall be considered, subject to the receipt of any
necessary regulatory approvals, to be the holder of record of the
shares of Common Stock issuable upon such exercise, notwithstanding
that the stock transfer books of Issuer shall then be closed or that
certificates representing such shares of Common Stock shall not then
be actually delivered to Holder. Issuer shall pay all expenses, and
any and all federal, state and local taxes and other charges that may
be payable in connection with the preparation, issuance and delivery
of stock certificates under this Section 2 in the name of Holder or
its assignee, transferee or designee.
3. COVENANTS OF ISSUER. Issuer agrees: (i) that it shall
at all times maintain, free from preemptive rights, sufficient
authorized but unissued or treasury shares of Common Stock so that the
Option may be exercised without additional authorization of Common
Stock after giving effect to all other options, warrants, convertible
securities and other rights to purchase Common Stock; (ii) that it
will not, by charter amendment or through reorganization,
consolidation, merger, dissolution or sale of assets, or by any other
voluntary act, avoid or seek to avoid the observance or performance of
any of the covenants, stipulations or conditions to be observed or
performed under this Agreement by Issuer; (iii) promptly to take all
action as may from time to time be required (including (x) complying
with all applicable premerger notification, reporting and waiting
period requirements and (y) if, under the applicable federal or state
regulatory requirements or any state or federal banking law, prior
approval of or notice to any Governmental Entity is necessary before
the Option may be exercised, cooperating fully with Holder in
preparing such applications or notices and providing such information
to each such Governmental Entity as they may require) to permit Holder
to exercise the Option and Issuer duly and effectively to issue shares
of Common Stock pursuant to this Agreement; and (iv) promptly to take
all action provided in this Agreement to protect the rights of Holder
against dilution.
4. EXCHANGE OF OPTION. This Agreement (and the Option
granted by this Agreement) are exchangeable, without expense, at the
option of Holder, upon presentation and surrender of this Agreement at
the principal office of Issuer, for other Agreements providing for
Options of different denominations entitling Holder to purchase, on
the same terms and subject to the same conditions as are set forth in
this Agreement, in the aggregate the same number of shares of Common
Stock subject to this Option. The terms "Agreement" and "Option" as
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used in this Agreement include any stock option agreements and related
options for which this Agreement (and the Option granted by this
Agreement) may be exchanged. Upon receipt by Issuer of evidence
reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Agreement, and (in the case of loss, theft or
destruction) of reasonably satisfactory indemnification, and upon
surrender and cancellation of this Agreement, if mutilated, Issuer
will execute and deliver a new Agreement of like tenor and date. Any
such new Agreement executed and delivered shall constitute an
additional contractual obligation on the part of Issuer, whether or
not the Agreement so lost, stolen, destroyed or mutilated shall at any
time be enforceable by anyone.
5. ADJUSTMENTS. In addition to the adjustment in the
number of shares of Common Stock that are subject to the Option
pursuant to Section 1 of this Agreement, the number of shares of
Common Stock subject to the Option and the Option Price shall be
subject to adjustment from time to time as provided in this Section 5.
(a) In the event of any change in, or distributions in
respect of, Common Stock by reason of stock dividends, stock splits,
mergers, recapitalizations, combinations, subdivisions, conversions,
exchanges of shares or the like, the type and number of shares of
Common Stock subject to the Option shall be appropriately adjusted and
proper provision shall be made so that, if any additional shares of
Common Stock are to be issued or otherwise become outstanding as a
result of any such change (other than pursuant to an exercise of the
Option), the number of shares of Common Stock that remain subject to
the Option shall be increased so that, after such issuance and
together with shares of Common Stock previously issued pursuant to the
exercise of the Option (as adjusted on account of any of the foregoing
changes in the Common Stock), such number equals 19.99% of the number
of shares of Common Stock then issued and outstanding.
(b) Whenever the number of shares of Common Stock
subject to the Option is adjusted as provided in this Section 5, the
Option Price shall be adjusted by multiplying the Option Price by a
fraction, the numerator of which shall be equal to the number of
shares of Common Stock subject to the Option prior to the adjustment
and the denominator of which shall be equal to the number of shares of
Common Stock subject to the Option after the adjustment.
6. REGISTRATION RIGHTS. Upon the occurrence of a
Subsequent Triggering Event that occurs prior to an Exercise
Termination Event, Issuer shall, at the request of Grantee delivered
within 12 months (or such later period as provided in Section 10) of
such Subsequent Triggering Event (whether on its own behalf or on
behalf of any subsequent holder of this Option (or part thereof) or
owner of any of the shares of Common Stock issued pursuant hereto),
promptly prepare, file and keep current a shelf registration statement
under the Securities Act covering any shares issued and/or issuable
pursuant to this Option and shall use its commercially reasonable
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efforts to cause such registration statement to become effective and
remain current to permit the sale or other disposition of any shares
of Common Stock issued upon total or partial exercise of this Option
("Option Shares") in accordance with any plan of disposition requested
by Grantee. Issuer will use its commercially reasonable efforts to
cause such registration statement promptly to become effective and
then to remain effective for such period not in excess of 180 days
from the day such registration statement first becomes effective or
such shorter time as may be reasonably necessary to effect such sales
or other dispositions. Grantee shall have the right to demand two such
registrations. Issuer shall bear the costs of both of such
registrations (including, without limitation, Issuer's attorneys'
fees, printing costs and filing fees, except for underwriting
discounts or commissions, brokers' fees and the fees and disbursements
of Grantee's counsel related thereto). Notwithstanding the above, if,
at the time of any request by Grantee for registration of Option
Shares as provided above, Issuer is in the process of registration
with respect to an underwritten public offering by Issuer of shares of
Common Stock, and if in the good faith judgment of the managing
underwriter or managing underwriters (or, if none, the sole
underwriter or underwriters) of such offering the offer and sale of
the Option Shares would interfere with the successful marketing of the
shares of Common Stock offered by Issuer, the number of Option Shares
otherwise to be covered in the registration statement contemplated by
this Section 6 may be reduced; PROVIDED, that, after any such required
reduction, the number of Option Shares included in such offering for
the account of Holder shall constitute at least 25% of the total
number of shares to be sold by Holder and Issuer in the aggregate;
PROVIDED FURTHER, that if such reduction occurs, then Issuer shall
file a registration statement (which shall not count as one of
Holder's two demand registrations) for the balance of the Option
Shares subject to the registration demand as promptly as practical as
to which no reduction pursuant to this Section 6 shall be permitted or
occur and, if such required reduction occurs in connection with the
Holder's first demand registration, the 12 month period referred to in
the first sentence of this Section shall be increased to 24 months for
the Holder's second demand registration. Each such Holder shall
provide all information reasonably requested by Issuer for inclusion
in any registration statement to be filed to register Option Shares.
If requested by any such Holder in connection with such registration,
Issuer shall become a party to any underwriting agreement relating to
the sale of such shares, but only to the extent of obligating itself
in respect of representations, warranties, indemnities and other
agreements customarily included in such underwriting agreements for
Issuer. Upon receiving any request under this Section 6 from any
Holder, Issuer agrees to send a copy thereof to any other person known
to Issuer to be entitled to registration rights under this Section 6,
in each case by promptly mailing the same, postage prepaid, to the
address of record of the persons entitled to receive such copies.
Notwithstanding anything to the contrary in this Agreement, in no
event shall the number of registrations that Issuer is obligated to
effect be increased by reason of the fact that there shall be more
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than one Holder as a result of any assignment or division of this
Agreement.
7. REPURCHASE OF OPTION.
(a) At any time after the occurrence of a Repurchase
Event (defined below): (i) at the request of Holder, delivered prior
to an Exercise Termination Event (or such later period as provided in
Section 10), Issuer (or any successor to Issuer) shall repurchase the
Option from Holder at a price (the "Option Repurchase Price") equal to
the amount by which (x) the market/offer price (as defined below)
exceeds (y) the Option Price, multiplied by the number of shares for
which this Option may then be exercised; and (ii) at the request of
the owner of Option Shares from time to time (the "Owner"), delivered
prior to an Exercise Termination Event (or such later period as
provided in Section 10), Issuer (or any successor to Issuer) shall
repurchase such number of the Option Shares from Owner as Owner shall
designate at a price (the "Option Share Repurchase Price") equal to
the market/offer price multiplied by the number of Option Shares so
designated. The term "market/offer price" shall mean the highest of:
(i) the price per share of Common Stock at which a tender or exchange
offer therefor has been made; (ii) the price per share of Common Stock
to be paid by any third party pursuant to an agreement with Issuer;
(iii) the highest sale price for shares of Common Stock within the
six-month period immediately preceding the date Holder gives notice of
the required repurchase of this Option or Owner gives notice of the
required repurchase of Option Shares, as the case may be; or (iv) in
the event of a sale of all or any substantial part of the assets or
deposits of Issuer or any Issuer Subsidiary, the sum of the net price
paid in such sale for such assets or deposits and the current market
value of the remaining assets of Issuer as determined by a nationally
recognized investment banking firm selected by Holder or Owner, as the
case may be, and reasonably acceptable to Issuer, divided by the
number of shares of Common Stock of Issuer outstanding at the time of
such sale. In determining the market/offer price, the value of
consideration other than cash shall be determined by a nationally
recognized investment banking firm selected by Holder or Owner, as the
case may be, and reasonably acceptable to Issuer.
(b) Holder or Owner, as the case may be, may exercise
its right to require Issuer to repurchase the Option and any Option
Shares pursuant to this Section 7 by surrendering for such purpose to
Issuer, at its principal office, a copy of this Agreement or
certificates for Option Shares, as applicable, accompanied by a
written notice or notices stating that Holder or Owner, as the case
may be, elects to require Issuer to repurchase this Option and/or the
Option Shares in accordance with the provisions of this Section 7. As
promptly as practicable, and in any event within five business days
after the surrender of the Option and/or certificates representing
Option Shares and the receipt of such notice or notices relating
thereto, Issuer shall deliver or cause to be delivered in immediately
available funds to Holder the Option Repurchase Price and/or to Owner
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the Option Share Repurchase Price therefor or the portion thereof that
Issuer is not then prohibited under applicable law and regulation from
so delivering.
(c) To the extent that Issuer is prohibited under
applicable law or regulation, or as a consequence of administrative
policy, from repurchasing the Option and/or the Option Shares in full,
Issuer shall immediately so notify Holder and/or Owner and thereafter
deliver or cause to be delivered in immediately available funds, from
time to time, to Holder and/or Owner, as appropriate, the portion of
the Option Repurchase Price and the Option Share Repurchase Price,
respectively, that it is no longer prohibited from delivering, within
five business days after the date on which Issuer is no longer so
prohibited; PROVIDED, that if Issuer at any time after delivery of a
notice of repurchase pursuant to Section 7(b) is prohibited under
applicable law or regulation, or as a consequence of administrative
policy, from delivering to Holder and/or Owner, as appropriate, the
Option Repurchase Price and the Option Share Repurchase Price,
respectively, in full (and Issuer hereby undertakes to use its
commercially reasonable efforts to obtain all required regulatory and
legal approvals and to file any required notices as promptly as
practicable in order to accomplish such repurchase), Holder or Owner
may revoke its notice of repurchase of the Option or the Option Shares
either in whole or to the extent of the prohibition, whereupon, in the
latter case, Issuer shall promptly: (i) deliver to Holder and/or
Owner, as appropriate, that portion of the Option Repurchase Price or
the Option Share Repurchase Price that Issuer is not prohibited from
delivering; and (ii) deliver, as appropriate, either (A) to Holder, a
new Agreement evidencing the right of Holder to purchase that number
of shares of Common Stock obtained by multiplying the number of shares
of Common Stock for which the surrendered Agreement was exercisable at
the time of delivery of the notice of repurchase by a fraction, the
numerator of which is the Option Repurchase Price less the portion of
the Option Repurchase Price previously delivered to Holder and the
denominator of which is the Option Repurchase Price, and/or (B) to
Owner, a certificate for the Option Shares it is then so prohibited
from repurchasing. If an Exercise Termination Event shall have
occurred prior to the date of the notice by Issuer described in the
first sentence of this Section 7(c), or shall be scheduled to occur at
any time before the expiration of a period ending on the thirtieth day
after such date, Holder shall nonetheless have the right to exercise
the Option until the expiration of such 30-day period.
(d) For purposes of this Section 7, a "Repurchase
Event" shall be considered to have occurred upon the occurrence of any
of the following events or transactions after the date of this
Agreement and prior to the occurrence of an Exercise Termination Event
(or such later date as provided in Section 10):
(i) the acquisition by any person (other than
Grantee or any Grantee Subsidiary) of beneficial ownership of 50%
or more of the then outstanding Common Stock; PROVIDED, that this
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Section 7(d)(i) shall not be triggered (and it shall not
constitute a Repurchase Event) by any acquisition of Issuer
Common Stock by any person or entity specifically identified as
being excluded (under certain circumstances) from becoming an
"Acquiring Person" in Section 1(b) of the Rights Agreement dated
as of July 8, 1996, between Issuer and Grand Premier Trust and
Investment, Inc., N.A., as successor to Premier Trust Services,
Inc., as Rights Agent (the "Rights Agreement") (before any
relettering of the subsections of the Rights Agreement
contemplated by the amendment of the Rights Agreement executed as
of the date hereof) if such acquisition of Issuer Common Stock by
such person or entity would not cause such person or entity to
become an "Acquiring Person" under the terms of the Rights
Agreement; or
(ii) the consummation of any Acquisition
Transaction described in clause (i) of Section 2(c), except that
the percentage referred to for purposes of defining "Acquisition
Transaction" in clause (c) of that definition shall be 50%.
8. SUBSTITUTE OPTION.
(a) If, prior to an Exercise Termination Event, Issuer
shall enter into an agreement to (i) consolidate with or merge into
any person, other than Grantee or any Grantee Subsidiary, or engage in
a plan of exchange with any person, other than Grantee or any Grantee
Subsidiary, and Issuer shall not be the continuing or surviving
corporation of such consolidation or merger or the acquiror in such
plan of exchange, (ii) permit any person, other than Grantee or any
Grantee Subsidiary, to merge into Issuer or be acquired by Issuer in a
plan of exchange and Issuer shall be the continuing or surviving
corporation, but, in connection with such merger or plan of exchange,
the then outstanding shares of Common Stock shall be changed into or
exchanged for stock or other securities of any other person or cash or
any other property or the then outstanding shares of Common Stock
shall after such merger or plan of exchange represent less than 50% of
the outstanding shares and share equivalents of the merged or
acquiring company, or (iii) sell or otherwise transfer all or a
substantial part of its or any Issuer Subsidiary's assets or deposits
to any person, other than Grantee or any Grantee Subsidiary, then, and
in each such case, the agreement governing such transaction shall make
proper provision so that the Option shall, upon the consummation of
any such transaction and upon the terms and conditions set forth in
this Agreement, be converted into, or exchanged for, an option (the
"Substitute Option"), at the election of Holder, to acquire capital
stock of either (x) the Acquiring Corporation (as defined below) or
(y) any person that controls the Acquiring Corporation.
(b) The following terms have the following meanings:
(i) "Acquiring Corporation" means: (i) the
continuing or surviving person of a consolidation or merger with
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Issuer (if other than Issuer); (ii) the acquiring person in a
plan of exchange in which Issuer is acquired; (iii) Issuer in a
merger or plan of exchange in which Issuer is the continuing or
surviving or acquiring person; and (iv) the transferee of all or
a substantial part of Issuer's or any Issuer Subsidiary's assets
or deposits.
(ii) "Substitute Common Stock" means the voting
common stock to be issued by the issuer of the Substitute Option
upon exercise of the Substitute Option.
(iii) "Assigned Value" means the market/offer
price, as defined in Section 7.
(iv) "Average Price" means the average closing
price of a share of the Substitute Common Stock for the one year
immediately preceding the consolidation, merger or sale in
question, but in no event higher than the closing price of the
shares of Substitute Common Stock on the day preceding such
consolidation, merger or sale; PROVIDED, that if Issuer is the
issuer of the Substitute Option, the Average Price shall be
computed with respect to a share of common stock issued by the
person merging into Issuer or by any company that controls or is
controlled by such person, as Holder may elect.
(c) The Substitute Option shall have the same terms as
the Option; PROVIDED, that if the terms of the Substitute Option
cannot, for legal reasons, be the same as the Option, such terms shall
be as similar as possible and in no event less advantageous to Holder.
The issuer of the Substitute Option shall also enter into an agreement
with the then Holder or Holders of the Substitute Option in
substantially the same form as this Agreement (after giving effect for
such purpose to the provisions of Section 9), which agreement shall be
applicable to the Substitute Option.
(d) The Substitute Option shall be exercisable for
such number of shares of Substitute Common Stock as is equal to the
Assigned Value multiplied by the number of shares of Common Stock for
which the Option was exercisable immediately prior to the event
described in the first sentence of Section 8(a), divided by the
Average Price. The exercise price of the Substitute Option per share
of Substitute Common Stock shall then be equal to the Option Price
multiplied by a fraction, the numerator of which shall be the number
of shares of Common Stock for which the Option was exercisable
immediately prior to the event described in the first sentence of
Section 8(a) and the denominator of which shall be the number of
shares of Substitute Common Stock for which the Substitute Option is
exercisable.
(e) In no event, pursuant to any of the subsections
above, shall the Substitute Option be exercisable for a number of
shares that, together with the number of shares owned by Grantee other
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than Fiduciary Shares, is more than 19.99% of the shares of Substitute
Common Stock outstanding prior to exercise of the Substitute Option.
In the event that the Substitute Option would be exercisable for more
than 19.99% of the shares of Substitute Common Stock outstanding prior
to exercise but for this Section 8(e), the issuer of the Substitute
Option (the "Substitute Option Issuer") shall make a cash payment to
Holder equal to the excess of (i) the value of the Substitute Option
without giving effect to the limitation in this Section 8(e) over (ii)
the value of the Substitute Option after giving effect to the
limitation in this Section 8(e). This difference in value shall be
determined by a nationally recognized investment banking firm selected
by Holder and reasonably acceptable to the Substitute Option Issuer.
(f) Issuer shall not enter into any transaction
described in Section 8(a) unless the Acquiring Corporation and any
person that controls the Acquiring Corporation assume in writing all
the obligations of Issuer under this Agreement.
9. REPURCHASE OF SUBSTITUTE OPTION.
(a) At the request of a holder of the Substitute
Option (a "Substitute Option Holder"), the Substitute Option Issuer
shall repurchase the Substitute Option from the Substitute Option
Holder at a price (the "Substitute Option Repurchase Price") equal to
the amount by which (i) the Highest Closing Price (as defined below)
exceeds (ii) the exercise price of the Substitute Option, multiplied
by the number of shares of Substitute Common Stock for which the
Substitute Option may then be exercised. In addition, at the request
of the owner (the "Substitute Share Owner") of shares of Substitute
Common Stock, the Substitute Option Issuer shall repurchase the
Substitute Common Stock at a price (the "Substitute Share Repurchase
Price") equal to the Highest Closing Price multiplied by the number of
shares of Substitute Common Stock so designated. The term "Highest
Closing Price" shall mean the highest closing price for shares of
Substitute Common Stock within the six-month period immediately
preceding the date the Substitute Option Holder gives notice of the
required repurchase of the Substitute Option or the Substitute Share
Owner gives notice of the required repurchase of the Substitute Common
Stock, as applicable.
(b) The Substitute Option Holder and the Substitute
Share Owner, as the case may be, may exercise their respective rights
to require the Substitute Option Issuer to repurchase the Substitute
Option and the Substitute Common Stock pursuant to this Section 9 by
surrendering for such purpose to the Substitute Option Issuer, at its
principal office, the agreement for such Substitute Option (or, in the
absence of such an agreement, a copy of this Agreement) and
certificates for Substitute Common Stock accompanied by a written
notice or notices stating that the Substitute Option Holder or the
Substitute Share Owner, as the case may be, elects to require the
Substitute Option Issuer to repurchase the Substitute Option and/or
the Substitute Common Stock in accordance with the provisions of this
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Section 9. As promptly as practicable, and in any event within five
business days after the surrender of the Substitute Option and/or
certificates representing Substitute Common Stock and the receipt of
such notice or notices relating thereto, the Substitute Option Issuer
shall deliver or cause to be delivered in immediately available funds
to the Substitute Option Holder the Substitute Option Repurchase Price
and/or to the Substitute Share Owner the Substitute Share Repurchase
Price therefor or the portion thereof that the Substitute Option
Issuer is not then prohibited under applicable law and regulation from
so delivering.
(c) To the extent that the Substitute Option Issuer is
prohibited under applicable law or regulation, or as a consequence of
administrative policy, from repurchasing the Substitute Option and/or
the Substitute Common Stock in part or in full, the Substitute Option
Issuer shall immediately so notify the Substitute Option Holder and/or
the Substitute Share Owner and thereafter deliver or cause to be
delivered, from time to time, to the Substitute Option Holder and/or
the Substitute Share Owner, as appropriate, the portion of the
Substitute Option Repurchase Price and the Substitute Share Repurchase
Price, respectively, which it is no longer prohibited from delivering,
within five business days after the date on which the Substitute
Option Issuer is no longer so prohibited; PROVIDED, that if the
Substitute Option Issuer is at any time after delivery of a notice of
repurchase pursuant to Section 9(b) prohibited under applicable law or
regulation, or as a consequence of administrative policy, from
delivering to the Substitute Option Holder and/or the Substitute Share
Owner, as appropriate, the Substitute Option Repurchase Price and the
Substitute Share Repurchase Price, respectively, in full (and the
Substitute Option Issuer shall use its commercially reasonable efforts
to obtain all required regulatory and legal approvals as promptly as
practicable to accomplish such repurchase), the Substitute Option
Holder or Substitute Share Owner may revoke its notice of repurchase
of the Substitute Option or the Substitute Common Stock either in
whole or to the extent of the prohibition, whereupon, in the latter
case, the Substitute Option Issuer shall promptly: (i) deliver to the
Substitute Option Holder or Substitute Share Owner, as appropriate,
that portion of the Substitute Option Repurchase Price or the
Substitute Share Repurchase Price that the Substitute Option Issuer is
not prohibited from delivering; and (ii) deliver, as appropriate,
either (x) to the Substitute Option Holder, a new Substitute Option
evidencing the right of the Substitute Option Holder to purchase that
number of shares of Substitute Common Stock obtained by multiplying
the number of shares of Substitute Common Stock for which the
surrendered Substitute Option was exercisable at the time of delivery
of the notice of repurchase by a fraction, the numerator of which is
the Substitute Option Repurchase Price less the portion of the
Substitute Option Repurchase Price previously delivered to the
Substitute Option Holder and the denominator of which is the
Substitute Option Repurchase Price, and/or (y) to the Substitute Share
Owner, a certificate for the Substitute Common Stock it is then so
prohibited from repurchasing. If an Exercise Termination Event shall
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have occurred prior to the date of the notice by the Substitute Option
Issuer described in the first sentence of Section 9(c), or shall be
scheduled to occur at any time before the expiration of a period
ending on the thirtieth day after such date, the Substitute Option
Holder shall nevertheless have the right to exercise the Substitute
Option until the expiration of such 30-day period
10. EXTENSION OF EXERCISE PROVISIONS. The 30-day,
six-month, 12-month, 18-month or 24-month time periods for the
exercise of certain rights under Sections 2, 6, 7, 9, 12 and 14 shall
be extended: (i) to the extent necessary to obtain all regulatory
approvals for the exercise of such rights (for so long as the Holder,
Owner, Substitute Option Holder or Substitute Share Owner, as the case
may be, is using commercially reasonable efforts to obtain such
regulatory approvals), and for the expiration of all statutory waiting
periods; (ii) to the extent necessary to avoid liability under Section
16(b) of the Exchange Act by reason of such exercise; and (iii) for a
period of time equal to any notice or cure periods provided to Issuer
in connection with any breach that would permit Grantee to terminate
the Plan of Merger pursuant to Section 2(c)(vii) of this Agreement.
11. REPRESENTATIONS AND WARRANTIES.
(a) Issuer hereby represents and warrants to Grantee
as follows:
(i) Issuer has full corporate power and authority
to execute and deliver this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and
delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly and
validly authorized by the board of directors of Issuer prior to
the date of this Agreement and no other corporate proceedings on
the part of Issuer are necessary to authorize this Agreement or
to consummate the transactions so contemplated. This Agreement
has been duly and validly executed and delivered by Issuer. This
Agreement is the valid and legally binding obligation of Issuer.
(ii) Issuer has taken all necessary corporate
action to authorize, reserve and permit it to issue, and at all
times from the date of this Agreement through the termination of
this Agreement in accordance with its terms will have reserved
for issuance upon the exercise of the Option, that number of
shares of Common Stock equal to the maximum number of shares of
Common Stock at any time and from time to time issuable under
this Agreement, and all such shares, upon issuance pursuant to
this Agreement, will be duly authorized, validly issued, fully
paid, nonassessable and will be delivered free and clear of all
claims, liens, encumbrances and security interests and not
subject to any preemptive rights.
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(b) Grantee hereby represents and warrants to Issuer
as follows:
(i) Grantee has full corporate power and
authority to execute and deliver this Agreement and, subject to
any approvals or consents referred to herein, to consummate the
transactions contemplated by this Agreement. The execution and
delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly
authorized by all necessary corporate action on the part of
Grantee. This Agreement has been duly executed and delivered by
Grantee.
(ii) The Option is not being, and any shares of
Common Stock or other securities acquired by Grantee upon
exercise of the Option will not be, acquired with a view to the
public distribution thereof and will not be transferred or
otherwise disposed of except in a transaction registered or
exempt from registration under the Securities Act of 1933, as
amended.
12. ASSIGNMENT. Neither party to this Agreement may assign
any of its rights or obligations under this Agreement or the Option
created under this Agreement to any other person without the express
written consent of the other party, except that if a Subsequent
Triggering Event shall have occurred prior to an Exercise Termination
Event, Grantee, subject to the express provisions of this Agreement,
may assign in whole or in part its rights and obligations under this
Agreement; PROVIDED, that until the date 15 days following the date on
which the last of all applicable Governmental Entities has approved an
application by Grantee to acquire the shares of Common Stock subject
to the Option, Grantee may not assign its rights under the Option
except in: (i) a widely dispersed public distribution; (ii) a private
placement in which no one party acquires the right to purchase in
excess of 2% of the voting shares of Issuer; (iii) an assignment to a
single party (such as a broker or investment banker) for the purpose
of conducting a widely dispersed public distribution on Grantee's
behalf; or (iv) any other manner approved by all applicable
Governmental Entities.
13. COOPERATION. Grantee and Issuer each will use its
commercially reasonable efforts to make all filings with, and to
obtain consents of, all third parties and Governmental Entities
necessary to the consummation of the transactions contemplated by this
Agreement, but Grantee shall not be obligated to apply to state
banking authorities for approval to acquire the shares of Common Stock
issuable under this Agreement until such time, if ever, as it
considers appropriate to do so.
14. MINIMUM REPURCHASE PROCEEDS.
-17-
(a) Grantee may, at any time following a Repurchase
Event that occurs prior to the occurrence of an Exercise Termination
Event (or such later period as provided in Section 10), relinquish the
Option (together with any Option Shares issued to and then owned by
Grantee) to Issuer in exchange for a cash fee equal to the Surrender
Price; PROVIDED, that Grantee may not exercise its rights pursuant to
this Section 14 if Issuer has repurchased the Option (or any portion
thereof) or any Option Shares pursuant to Section 7. The "Surrender
Price" shall be equal to $15,763,040.00 (i) plus, if applicable,
Grantee's purchase price with respect to any Option Shares and (ii)
minus, if applicable, the excess of (A) the net cash amounts, if any,
received by Grantee pursuant to the arms' length sale of Option Shares
(or any other securities into which such Option Shares were converted
or exchanged) to any unaffiliated party, over (B) the Option Price.
(b) Grantee may exercise its right to relinquish the
Option and any Option Shares pursuant to this Section 14 by
surrendering to Issuer, at its principal office, a copy of this
Agreement together with certificates for Option Shares, if any,
accompanied by a written notice stating (i) that Grantee elects to
relinquish the Option and Option Shares, if any, in accordance with
the provisions of this Section 14 and (ii) the Surrender Price. The
Surrender Price shall be payable in immediately available funds on or
before the second business day following receipt of such notice by
Issuer.
(c) To the extent that Issuer is prohibited under
applicable law or regulation, or as a consequence of administrative
policy, from paying the Surrender Price to Grantee in full, Issuer
shall immediately so notify Grantee and thereafter deliver or cause to
be delivered, from time to time, to Grantee, the portion of the
Surrender Price that it is no longer prohibited from paying, within
five business days after the date on which Issuer is no longer so
prohibited; PROVIDED, that if Issuer at any time after delivery of a
notice of surrender pursuant to Section 14(b) is prohibited under
applicable law or regulation, or as a consequence of administrative
policy, from paying to Grantee the Surrender Price in full: (i) Issuer
shall (A) use its commercially reasonable efforts to obtain all
required regulatory and legal approvals and to file any required
notices as promptly as practicable in order to make such payments, (B)
within five days of the submission or receipt of any documents
relating to any such regulatory and legal approvals, provide Grantee
with copies of the same, and (C) keep Grantee advised of both the
status of any such request for regulatory and legal approvals, as well
as any discussions with any relevant regulatory or other third party
reasonably related to the same; and (ii) Grantee may revoke such
notice of surrender by delivery of a notice of revocation to Issuer
and, upon delivery of such notice of revocation, the date of any
Exercise Termination Event shall be extended to a date six months from
the date on which the Exercise Termination Event would have occurred
if not for the provisions of this Section 14(c) (during which period
-18-
Grantee may exercise any of its rights under this Agreement, including
any and all rights pursuant to this Section 14).
15. REMEDIES. The parties acknowledge that damages would
be an inadequate remedy for a breach of this Agreement by either party
and that the obligations of the parties shall be enforceable by either
party through injunctive or other equitable relief. In connection
therewith, the parties waive the posting of any bond or similar
requirement.
16. SEVERABILITY. If any term, provision, covenant or
restriction contained in this Agreement is held by a court or a
federal or state regulatory agency of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions contained in this Agreement
shall remain in full force and effect and shall in no way be affected,
impaired or invalidated. If for any reason such court or regulatory
agency determines that Holder is not permitted to acquire, or Issuer
is not permitted to repurchase pursuant to Section 7, the full number
of shares of Common Stock provided in Section 1(a) (as adjusted
pursuant to Sections 1(b) or 5), it is the express intention of Issuer
to allow Holder to acquire or to require Issuer to repurchase such
lesser number of shares as may be permissible, without any amendment
or modification of this Agreement.
17. NOTICES. All notices, requests, claims, demands and
other communications under this Agreement shall be in writing and
shall be considered to have been duly given if delivered or sent and
received by a fax transmission (if receipt by the intended recipient
is confirmed by telephone and if hard copy is delivered by overnight
delivery service the next day), by hand delivery, or by a nationwide
overnight delivery service (all fees prepaid) to the respective
addresses of the parties set forth in the Plan of Merger.
18. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws.
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be considered to be an original, but
all of which shall constitute one and the same agreement.
20. FEES AND EXPENSES. Except as otherwise expressly
provided in this Agreement, each party shall bear and pay all costs
and expenses incurred by it or on its behalf in connection with the
transactions contemplated under this Agreement, including fees and
expenses of its own financial consultants, investment bankers,
accountants and counsel.
21. ENTIRE AGREEMENT. Except as otherwise expressly
provided in this Agreement or in the Plan of Merger, this Agreement
-19-
contains the entire agreement between the parties with respect to the
transactions contemplated under this Agreement and supersedes all
prior arrangements or understandings with respect thereof, written or
oral. The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the parties to this Agreement and their
respective successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to confer upon any party,
other than the parties to this Agreement, and their respective
successors and permitted assignees, any rights, remedies, obligations
or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
[The remainder of this page intentionally blank]
-20-
In Witness Whereof, the parties have caused this Stock Option
Agreement to be executed by their officers, thereunto duly authorized,
as of the date first written above.
OLD KENT FINANCIAL CORPORATION
By: /s/ Mark F. Furlong
------------------------------
Mark F. Furlong
Executive Vice President and
Chief Financial Officer
GRAND PREMIER FINANCIAL, INC.
By: /s/ Richard L. Geach
------------------------------
Richard L. Geach
Its: Chairman and Chief
Executive Officer
-21-
<PAGE>
EXHIBIT 99.1
------------
NYSE: OK
NASDAQ-NMS: GPFI
FOR RELEASE: 8:00 A.M.
DATE: September 10, 1999
CONTACTS: OLD KENT FINANCIAL CORPORATION
INVESTOR: ALBERT T. POTAS(616) 771-1931
MEDIA: TANYA BERG (616) 771-4364
GRAND PREMIER FINANCIAL, INC.
RICHARD L. GEACH (847) 487-1818
OLD KENT TO ACQUIRE GRAND PREMIER FINANCIAL, INC.
-Old Kent further expands its Chicago area franchise and will
have the 5th largest deposit market share in Illinois-
Grand Rapids, Michigan - David J. Wagner, Chairman, President and
CEO of Old Kent Financial Corporation, and Richard L. Geach, Chairman,
President and CEO of Grand Premier Financial, Inc., announced today
that they have signed a definitive agreement for the merger of Grand
Premier into Old Kent.
Grand Premier Financial, Inc. is a bank holding company
headquartered in the Chicago suburb of Wauconda, Illinois, with assets
of $1.6 billion and deposits of $1.3 billion at June 30, 1999. Grand
Premier has 23 banking offices located in Cary, Crete, Crystal Lake,
DeKalb, Dixon, Freeport, Gurnee, Island Lake, Mokena, Mundelein,
Niles, Northbrook, Rockford, South Chicago Heights, Sterling,
Wauconda, Waukegan and Woodstock, Illinois. The addition of Grand
Premier will move Old Kent to the #5 position in Illinois deposit
market share. Old Kent already holds the #5 position in the Chicago
area deposit market share. Upon completion of this transaction, Old
Kent will have 79 banking offices and deposits of $5.8 billion in
greater Chicago, compared to 25 offices and $1.7 billion of deposits
just one year ago.
Mr. Wagner stated, "Grand Premier is a high quality banking
franchise with a history of growth. This affiliation will augment Old
Kent's growing presence in Chicagoland, enabling the Corporation to
broaden its customer service capabilities through additional locations
and achieve greater economies of scale in the delivery of its broad
range of financial services in this thriving market."
Mr. Geach said, "We view this transaction as a unique opportunity
for Grand Premier's customers and shareholders. Old Kent offers a wide
menu of attractive products and greater convenience for our customers.
For our shareholders, it means ownership of a growing organization
with a 40 year history of consecutive increases in annual per share
earnings and dividends."
-more-
The merger is subject to the customary approvals by Grand Premier
Financial, Inc. shareholders and by regulatory authorities. This
transaction is expected to be completed in early 2000. Old Kent's
management believes that the acquisition will be accretive to earnings
in the year 2000 without factoring in anticipated revenue
enhancements.
The merger is intended to be structured as a "pooling-of-
interest" for accounting purposes and as a tax free exchange of
shares. Grand Premier Financial, Inc. shareholders would receive
approximately ten million shares of Old Kent stock, using an exchange
ratio of 0.4231 for each share of Grand Premier Financial, Inc.
($16.66 per share based on Old Kent's closing price on September 9,
1999). Old Kent anticipates approximately $30 million (pre-tax) of
one-time merger related charges. The total value of the transaction
would be $394 million. Old Kent expects annual cost savings of $15
million (pre-tax), about 30% of Grand Premiers' expense base, to
result from the merger. The combined company is expected to have a
market capitalization of $5.3 billion.
Old Kent also noted that its recently announced stock
repurchase program would be unaffected by this proposed transaction.
The program was authorized in June 1999 and allows for the repurchase
of up to 3 million shares of Old Kent Common Stock.
On July 9, 1999, Old Kent completed its acquisition of CFSB
Bancorp, Inc., a $900 million banking organization headquartered in
Lansing, Michigan. Old Kent also completed its acquisition of Pinnacle
Banc Group, Inc., a $1 billion banking organization headquartered in
Oakbrook, Illinois, on September 3, 1999. The Corporation expects to
consumate its acquisition of Merchants Bancorp, Inc., a $0.9 billion
banking organization headquartered in Aurora, Illinois, in early 2000.
Old Kent is a financial services company headquartered in
Grand Rapids, Michigan. It operates 260 banking offices in Michigan,
Illinois and Indiana as well as 167 mortgage lending sites throughout
the United States. Upon completion of its acquisition of Pinnacle Banc
Group, Inc., Old Kent had total assets of approximately $18 billion.
# # #
The following Summary Financial Data is part of the press release.
-2-
Summary Financial Data
Old Kent Grand Premier
YTD June 30, 1999 YTD June 30, 1999
Earnings Summary:
Basic Earnings Per Share $1.11 $.58
Diluted Earnings Per Share $1.10 $.58
Net Income $120,644,000 $13,537,000
Balance Sheet Data (in millions):
Total Loans $ 9,823 $1,041
Total Deposits 12,363 1,283
Total Assets 15,929 1,575
Shareholders' Equity 1,072 188
# # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # #
FORWARD LOOKING STATEMENTS
This news release contains certain estimates and projections for Old
Kent Financial Corporation, Grand Premier Financial, Inc. and the
combined company following the merger, including estimates and
projections related to cost savings, revenue enhancements and
accretion that may be realized from the merger, and certain merger-
related charges expected to be incurred in connection with the
transaction. These estimates and projections constitute forward-
looking statements which involve significant risks and uncertainties.
Actual results may differ materially from the results discussed in
these forward-looking statements. Internal and external factors that
might cause such a difference include, but are not limited to: (1)
expected cost savings from the merger might not be fully realized or
realized within the expected time frame; (2) revenues following the
merger may be lower than expected; (3) competitive pressures among
depository institutions may increase significantly; (4) costs or
difficulties related to the integration of the business may be
encountered; (5) changes in the interest rate environment may reduce
net interest income; (6) general economic conditions may deteriorate,
either nationally or in the states in which the combined company will
be doing business; and (7) legislation or regulatory changes may
adversely affect the businesses in which the combined company would be
engaged.
-3-
<PAGE>
EXHIBIT 99.2
------------
VOTING AGREEMENT
This Voting Agreement (the "Voting Agreement") is made as of
September 9, 1999, by and among Old Kent Financial Corporation, a
Michigan corporation ("Old Kent"), and each of the undersigned
(individually a "Stockholder" and collectively the "Stockholders").
Grand Premier Financial, Inc., a Delaware corporation
("Grand Premier") and Old Kent propose to enter, or have entered, into
an Agreement and Plan of Merger, dated as of September 9, 1999 (the
"Merger Agreement"), that provides, among other things, that Grand
Premier shall be merged with and into Old Kent or one of its
subsidiaries (the "Merger") pursuant to the terms and conditions of
the Merger Agreement. Capitalized terms not otherwise defined in this
Voting Agreement shall have the meanings given to such terms in the
Merger Agreement.
As an essential condition and inducement to Old Kent to
enter into the Merger Agreement, and in consideration therefor, the
Stockholders and the Old Kent have agreed to enter into this Voting
Agreement. As of the date of this Voting Agreement, each Stockholder
owns of record and beneficially the shares of: (a) Grand Premier
Common Stock, (b) Grand Premier Series B Preferred Stock, and (c)
Grand Premier Series C Preferred Stock (collectively, the "Grand
Premier Stock") set forth opposite their respective names on SCHEDULE
A and desire to enter into this Voting Agreement with respect to such
shares of Grand Premier Stock.
In consideration of the foregoing and the mutual covenants
and agreements contained in this Voting Agreement and in the Merger
Agreement, the parties agree:
ARTICLE I - VOTING OF SHARES
1.1 VOTING AGREEMENT. Each Stockholder agrees to (a) appear, or
cause the holder of record on any applicable record date (the "Record
Holder") to appear, for the purpose of obtaining a quorum at any
annual or special meeting of stockholders of Grand Premier and at any
adjournment thereof at which matters relating to the Merger, Merger
Agreement, or any transaction contemplated thereby are considered, and
(b) vote, or cause the Record Holder to vote, in person or by proxy,
all of the shares of Grand Premier Stock owned by Stockholder or with
respect to which such Stockholder has or shares voting power or
control, and all of the shares of Grand Premier Stock that shall, or
with respect to which voting power or control shall, hereafter be
acquired by such Stockholder (collectively, the "Shares") in favor of
the Merger, the adoption of Merger Agreement, and the transactions
contemplated by the Merger Agreement.
1.2 NO OWNERSHIP INTEREST. Nothing contained in this Voting
Agreement shall be deemed to vest in Old Kent any direct or indirect
ownership or incidence of ownership of or with respect to any Shares.
All rights, ownership, and economic benefits of and relating to the
Shares shall remain and belong to the Stockholders. Old Kent shall
have no authority to manage, direct, superintend, restrict, regulate,
govern, or administer any of the policies or operations of the Grand
Premier or exercise any power or authority to direct the Stockholders
in the voting of any of the Shares, except as otherwise provided in
this Voting Agreement, or the performance of the Stockholders' duties
or responsibilities as stockholders of the Grand Premier.
1.3 EVALUATION OF INVESTMENT. Each Stockholder, by reason of his
or its knowledge and experience in financial and business matters,
believes himself or itself capable of evaluating the merits and risks
of the investment in shares of Old Kent common stock, par value $1.00
per share ("Old Kent Common Stock"), Old Kent Series D Preferred
Stock, par value $.01 per share, and Old Kent Series E Preferred
Stock, par value $.01 per share, contemplated by the Merger Agreement.
Each Stockholder acknowledges receipt of copies of the following
documents: (a) the Merger Agreement; (b) the Option Agreement; (c) Old
Kent's Annual Report on Form 10-K for the fiscal year ended December
31, 1998; (d) Old Kent's Proxy Statement dated March 1, 1999; (e) Old
Kent's 1998 Annual Report (attached to the Proxy Statement); and (f)
Old Kent's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1999 and June 30, 1999. Each Stockholder also acknowledges that
it possesses the information relating to Grand Premier that such
Stockholder deems relevant to an investment in the Old Kent Common
Stock, Old Kent Series D Preferred Stock and Old Kent Series E
Preferred Stock should the Merger be consummated.
1.4 NO INCONSISTENT AGREEMENTS. Each Stockholder covenants and
agrees that, except as contemplated by this Voting Agreement and the
Merger Agreement, the Stockholder (a) has not entered, and shall not
enter at any time while this Voting Agreement remains in effect, into
any voting agreement, and (b) has not granted, and shall not grant at
any time while this Voting Agreement remains in effect, a proxy or
power of attorney, in either case that is inconsistent with this
Voting Agreement.
1.5 GRAND PREMIER PREFERRED STOCK. If and to the extent a
Stockholder is the holder of Grand Premier Series C Preferred Stock,
such Stockholder hereby approves the "Change of Control" (as defined
in Section 4.3.5 of Article IV of Partner's amended and restated
certificate of incorporation) and further agrees that such Stockholder
shall not approve (and shall not cause the approval of, in any manner
contemplated under Section 4.3.5 of Article IV of Partner's amended
and restated certificate of incorporation) the conversion of such
Stockholder's shares of Grand Premier Series C Preferred Stock into
the right to receive a cash payment upon the Merger with Old Kent or
one of its subsidiaries. Holders of Grand Premier Series B Preferred
Stock and Grand Premier Series C Preferred Stock have the right to
dissent from the Merger and to demand an appraisal of their shares
pursuant to Section 262 of the Delaware General Corporation Law, a
-2-
copy of which is attached as Exhibit A to this Voting Agreement. If
and to the extent a Stockholder is the holder of Grand Premier Series
B Preferred Stock or Grand Premier Series C Preferred Stock, such
Stockholder agrees that, in connection with the Merger, he shall not
make any demand for appraisal of such shares under the Delaware
General Corporation Law.
ARTICLE II - TRANSFER
2.1 TRANSFER OF TITLE. Each Stockholder covenants and agrees
that such Stockholder will not, prior to the termination of this
Voting Agreement, either directly or indirectly, offer or otherwise
agree to sell, assign, pledge, hypothecate, transfer, exchange, or
dispose of any Shares or options to purchase Grand Premier Common
Stock ("Options") or any other securities or rights convertible into
or exchangeable for shares of Grand Premier Common Stock, owned either
directly or indirectly by such Stockholder or with respect to which
such Stockholder has the power of disposition, whether now or
hereafter acquired, without the prior written consent of Old Kent
(provided nothing contained in this Voting Agreement will be deemed to
restrict the exercise of Options), unless the Person to whom Shares or
Options have been sold, assigned, pledged, hypothecated, transferred,
exchanged or disposed agrees to be bound by this Voting Agreement as
if a party to this Voting Agreement. The Stockholder agrees and
consents to the entry of stop transfer instructions by the applicable
transfer agent for Shares upon request by Old Kent against the
transfer of any Shares consistent with the terms of this Section. The
Stockholder further agrees that he or it shall instruct the transfer
agent to enter stop transfer instructions and that, if requested by
Old Kent, he or it shall deliver the applicable Shares to the Transfer
Agent with instructions to legend the shares to reflect the terms of
this Voting Agreement.
ARTICLE III - REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Each Stockholder severally and not jointly represents and
warrants to Old Kent as follows:
3.1 AUTHORITY RELATIVE TO THIS VOTING AGREEMENT. Such
Stockholder is competent and has the full power and authority to
execute and deliver this Voting Agreement, to perform his or its
obligations under this Voting Agreement, and to consummate the
transactions contemplated by this Voting Agreement. This Voting
Agreement has been duly and validly executed and delivered by such
Stockholder and constitutes a legal, valid and binding obligation of
such Stockholder, enforceable against such Stockholder in accordance
with its terms.
3.2 NO CONFLICT. The execution and delivery of this Voting
Agreement by such Stockholder does not, and the performance of this
-3-
Voting Agreement by such Stockholder shall not, result in any breach
of or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or
result in the creation of a lien or encumbrance, on any of the Shares
or Options pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or
obligation to which such Stockholder is a party or by which such
Stockholder or the Shares or Options are bound or affected.
ARTICLE IV - GENERAL PROVISIONS
4.1 TERMINATION. This Voting Agreement shall terminate upon the
earliest to occur of (a) the termination of the Merger Agreement in
accordance with its terms, or (b) the Effective Time. No such
termination shall relieve any party from liability for any breach of
this Voting Agreement prior to such termination.
4.2 ENFORCEMENT OF VOTING AGREEMENT. Each party agrees that
irreparable damage would occur in the event that any of the provisions
of this Voting Agreement were not performed in accordance with its
specified terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Voting Agreement and to specific performance
of the terms and provisions of this Voting Agreement in addition to
any other remedy to which they are entitled at law or in equity.
4.3 SUCCESSORS AND AFFILIATES. This Voting Agreement shall inure
to the benefit of and shall be binding upon the parties and their
respective heirs, legal representatives, successors and permitted
assigns. If any Stockholder shall at any time hereafter acquire
ownership of, or voting or dispositive power with respect to, any
additional Shares in any manner, whether by the exercise of any
Options or any securities or rights convertible into or exchangeable
for shares of Grand Premier Common Stock, by operation of law or
otherwise, such Shares shall be held subject to all of the terms and
provisions of this Voting Agreement. Without limiting the foregoing,
each Stockholder specifically agrees that the obligations of such
Stockholder under this Voting Agreement shall not be terminated by
operation of law, whether by death or incapacity of the Stockholder or
otherwise.
4.4 ENTIRE AGREEMENT. This Voting Agreement, together with the
Affiliate Letter in the form attached as EXHIBIT F to the Merger
Agreement, if and to the extent entered into by each of the
Stockholders and Old Kent, constitute the entire agreement among Old
Kent and the Stockholders with respect to the subject matter of this
Voting Agreement and supersedes all prior agreements and
understandings, both written and oral, among Old Kent and the
Stockholders with respect to the subject matter of this Voting
Agreement.
-4-
4.5 COUNTERPARTS; AMENDMENT. This Voting Agreement may be
executed in several counterparts, each of which shall constitute one
and the same instrument. This Voting Agreement may not be amended
except by an instrument in writing signed by the parties.
4.6 SEVERABILITY. If any term or other provision of this Voting
Agreement is invalid, illegal, or incapable of being enforced by any
rule of law, or public policy, all other conditions and provisions of
this Voting Agreement shall nevertheless remain in full force and
effect. Upon such determination that any term or other provision is
invalid, illegal, or incapable of being enforced, the parties shall
negotiate in good faith to modify this Voting Agreement so as to
effect the original intent of the parties as closely as possible to
the fullest extent permitted by applicable law in a mutually
acceptable manner in order that the terms of this Voting Agreement
remain as originally contemplated to the fullest extent possible.
4.7 GOVERNING LAW. This Voting Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware,
without regard to the applicable principles of conflicts of law.
4.8 OBLIGATIONS OF STOCKHOLDERS. The obligations of the
Stockholders under this Voting Agreement shall be "several" and not
"joint" or "joint and several." Without limiting the generality of the
foregoing, under no circumstances will any Stockholder have any
liability or obligation with respect to any misrepresentation or
breach of covenant of any other Stockholder.
4.9 OFFICERS AND DIRECTORS. No person who is or becomes (during
the term of this Voting Agreement) a director or officer of Grand
Premier makes any agreement or understanding in this Voting Agreement
in his or her capacity as such director or officer. Nothing in this
Voting Agreement will limit or affect, or give rise to any liability
to Stockholder by virtue of, any actions taken by any Stockholder in
his or her capacity as an officer or director of Grand Premier in
exercising its rights under the Merger Agreement.
-5-
IN WITNESS WHEREOF, each of the parties has caused this
Voting Agreement to be duly executed as of the date first written
above.
OLD KENT FINANCIAL CORPORATION
By /s/ Mark F. Furlong
------------------------------------
Mark F. Furlong
Executive Vice President and
Chief Financial Officer
/s/ Brenton J. Emerick
------------------------------------
Brenton J. Emerick
/s/ Thomas D. Flanagan
------------------------------------
Thomas D. Flanagan
/s/ Howard A. McKee
-------------------------------------
Howard A. McKee
NORTHLAND INSURANCE AGENCY, INC.
By /s/ Howard A. McKee
-------------------------------------
Its Chairman
--------------------------------
KEECO, INC.
By /s/ Howard A. McKee
-------------------------------------
Its Chairman
--------------------------------
MUNICIPAL INSURANCE COMPANY
By /s/ Noa W. Horner
-------------------------------------
Its President
--------------------------------
-6-
VOTING AGREEMENT
SCHEDULE A
STOCKHOLDER NUMBER OF SHARES OF GRAND PREMIER STOCK
---------------------------------------
Common Series B Series C
Stock Preferred Stock Preferred Stock
------ --------------- ---------------
Brenton J. Emerick 735,310(1)
Thomas D. Flanagan 2,750 7,000(2) 2,000
Howard A. McKee 4,481,491
Northland Insurance
Agency, Inc. 1,206,401
Keeco, Inc. 1,166,360
Municipal Insurance
Company 530,317
(1) Does not include 550 shares subject to options that are
exercisable within 60 days of the date of this Voting Agreement.
(2) Convertible as of the date of this Voting Agreement into 904,546
shares of Common Stock.
