As filed with the Securities and Exchange Commission on February 17, 1994
Registration No. 33-51997
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No 1. to
FORM S-4
REGISTRATION STATEMENT
Under The Securities Act Of 1933
OLD KENT FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
Michigan 6711 38-1986608
(State or Other Jurisdiction of (Primary Standard Industrial (IRS Employer
Incorporation or Organization) Classification Code Number) Identification No.)
One Vandenberg Center
Grand Rapids, Michigan 49503
(616) 774-5000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Richard W. Wroten
Old Kent Financial Corporation
One Vandenberg Center
Grand Rapids, Michigan 49503
(616) 774-5808
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
It is requested that copies of communications be sent to:
Gordon R. Lewis Timothy M. Sullivan
Warner, Norcross & Judd Hinshaw & Culbertson
One Vandenberg Center Suite 300, 222 North LaSalle Street
Grand Rapids, Michigan 49503 Chicago, Illinois 60601
(616) 459-6121 (312) 704-3852
Approximate date of commencement of proposed sale of the securities to the
public:
As soon as practicable after this registration statement becomes effective.
If the securities being registered on this Form are being offered in connection
with the formation of a holding company and there is compliance with General
Instruction G, check the following box: ___________
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said section 8(a),
may determine.
<PAGE>
OLD KENT FINANCIAL CORPORATION
Cross-Reference Sheet
FORM S-4
<TABLE>
<CAPTION>
Heading in Prospectus
Item of Form S-4 and Proxy Statement
<S> <C>
1. Forepart of Registration Statement and Outside Outside Front Cover Page of Prospectus
Outside Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover Pages of Inside Front Cover Page of Prospectus
Prospectus Outside Back Cover Page of Prospectus
3. Risk Factors, Ratio of Earnings to Fixed Charges Introduction and Summary
and Other Information
4. Terms of the Transaction The Merger
5. Pro Forma Financial Information Not Applicable
6. Material Contacts with the Company Being Summary of the Terms of the Merger
Acquired Agreements of Affiliates
7. Additional Information Required for Reoffering Not Applicable
by Persons and Parties Deemed to be
Underwriters
8. Interests of Named Experts and Counsel Opinion of Financial Adviser
Independent Public Accountants
Legal Opinions
9. Disclosure of Commission Position on Indemnifi- Not Applicable
cation for Securities Act Liabilities
10. Information with Respect to S-3 Registrants Old Kent Financial
Corporation
11. Incorporation of Certain Information by Reference Incorporation by Reference
12. Information with Respect to S-2 or S-3 Registrants Not Applicable
13. Incorporation of Certain Information by Reference Not Applicable
14. Information with Respect to Registrants Other Not Applicable
Than S-2 or S-3 Registrants
15. Information with Respect to S-3 Companies Not Applicable
16. Information with Respect to S-2 or S-3 Companies EdgeMark
Incorporation by Reference
Appendices B and C
17. Information with Respect to Companies Other Not Applicable
Than S-2 or S-3 Companies
18. Information if Proxies, Consents or Authorizations Outside Front Cover Page
are to be Solicited Introduction
Summary of Certain Aspects of the Merger
(vote required)
General Proxy Information
Appraisal Rights
Voting and Management Information
Stockholder Proposals
19. Information if Proxies, Consents or Authorizations Not Applicable
are not to be Solicited in an Exchange Offer
</TABLE>
PROSPECTUS AND PROXY STATEMENT
Special Meeting of Stockholders of
EDGEMARK FINANCIAL CORPORATION
In Connection with an Offering of up to
2,181,000 Shares
OLD KENT FINANCIAL CORPORATION
Common Stock, $1.00 Par Value
The Board of Directors of EdgeMark Financial Corporation ("EdgeMark") is
furnishing this Prospectus and Proxy Statement to solicit proxies to vote at the
special meeting of EdgeMark's stockholders to be held on April 5, 1994, and
at any adjournment thereof. At the special meeting the stockholders will
consider and vote upon the adoption of an Agreement and Plan of Merger pursuant
to which EdgeMark would become affiliated with Old Kent Financial Corporation
("Old Kent") through the merger of EdgeMark with and into Old Kent - Illinois,
Inc., a wholly-owned subsidiary of Old Kent ("OKFC Subsidiary") (the "Merger").
This Prospectus and Proxy Statement is a prospectus of Old Kent relating to an
offering of Old Kent Common Stock, $1 par value. This offering is made only to
the holders of EdgeMark Common Stock, $1 par value. (See "The Merger.")
If the Merger is consummated, each share of EdgeMark Common Stock which is
outstanding immediately prior to the effective time of the Merger will be
converted into shares of Old Kent Common Stock. The number of shares to be
received by each EdgeMark stockholder will be based on a Conversion Ratio,
subject to payment in cash for fractional shares and adjustment under certain
circumstances. The Conversion Ratio will be equal to $42.79 divided by the "Old
Kent Stock Price Per Share." The "Old Kent Stock Price Per Share" will be the
weighted average of all transactions reported for Old Kent Common Stock on the
Bloomberg Financial Markets System, or an equivalent system, for each of the
last ten trading days preceding the date of closing for which transactions in
Old Kent Common Stock are reported on that system. Notwithstanding such
weighted average, the Old Kent Stock Price Per Share will not be more than $35
per share nor less than $31 per share. The Conversion Ratio is subject to
upward or downward adjustment upon the occurrence of certain events specified
in the Plan of Merger. (See "The Merger.")
Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ"), EdgeMark's
financial adviser, has rendered its written opinion to the Board of Directors of
EdgeMark that the Conversion Ratio contained in the Plan of Merger is fair, from
a financial point of view, to the holders of EdgeMark Common Stock. This
opinion, which is attached to this Prospectus and Proxy Statement as Appendix D,
should be read in its entirety with respect to the assumptions made and other
matters considered by DLJ in rendering such opinion.
Consummation of the Merger is subject to EdgeMark stockholder and regulatory
approvals and certain other conditions. (See "The Merger--Conditions to the
Merger and Abandonment.")
Your vote is important. Approval of the proposed merger requires the
affirmative vote of the holders of a majority of the outstanding shares of
EdgeMark Common Stock. Whether or not you expect to attend the meeting in
person, please sign and date the accompanying Proxy and mail it promptly in the
enclosed envelope.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS AND PROXY STATEMENT. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This Prospectus and Proxy Statement is dated February 23, 1994.
AVAILABLE INFORMATION
Old Kent and EdgeMark are subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and in
accordance therewith file reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). These materials can
be inspected and copied at the Public Reference Room of the Commission (Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549), and at the Commission's
Regional Offices in New York (7 World Trade Center, New York, New York 10048)
and Chicago (500 West Madison Street, Suite 1400, Chicago, Illinois 60661).
Copies of such material can also be obtained from the Public Reference Room of
the Commission at prescribed rates.
Old Kent has filed a Registration Statement under the Securities Act of 1933,
as amended (the "Securities Act") with the Commission relating to the Old Kent
Common Stock offered in connection with the proposed Merger described in this
Prospectus and Proxy Statement. This Prospectus and Proxy Statement does not
contain all of the information set forth in the Registration Statement, certain
portions of which are omitted in accordance with the rules and regulations of
the Commission. Reference is hereby made to the Registration Statement and
exhibits for further information about Old Kent, EdgeMark and their respective
securities.
THIS PROSPECTUS AND PROXY STATEMENT INCORPORATES DOCUMENTS BY REFERENCE WHICH
ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE
UPON REQUEST FROM MARTIN J. ALLEN, JR., SENIOR VICE PRESIDENT AND SECRETARY, OLD
KENT FINANCIAL CORPORATION, ONE VANDENBERG CENTER, GRAND RAPIDS, MICHIGAN 49503,
TELEPHONE NUMBER (616) 774-5590. IN ORDER TO ENSURE TIMELY DELIVERY OF THE
DOCUMENTS, ANY REQUEST SHOULD BE MADE BY MARCH 29, 1994.
Old Kent undertakes to provide without charge to each person, including any
beneficial owner, to whom a Prospectus and Proxy Statement is delivered, upon
written or oral request, a copy of any and all information that has been
incorporated by reference in the Prospectus and Proxy Statement (not including
exhibits to the information that is incorporated by reference unless such
exhibits are specifically incorporated by reference into the information that
the Prospectus and Proxy Statement incorporates).
EDGEMARK FINANCIAL CORPORATION
Merchandise Mart Plaza
Suite 2400
Chicago, Illinois 60654
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
NOTICE IS HEREBY GIVEN that the special meeting of stockholders of EdgeMark
Financial Corporation will be held at William Tell - Holiday, Inn, 6201 Juliet
Road, Centuryside, Illinois, on April 5, 1994, at 3:00 p.m., Chicago time for
the following purposes:
1. To consider and vote upon a proposal to adopt an Agreement and Plan of
Merger among EdgeMark Financial Corporation, Old Kent Financial Corporation and
Old Kent-Illinois, Inc.
2. To transact such other business as may properly come before the meeting.
The Board of Directors has fixed the close of business on February 17, 1994, as
the record date for the determination of stockholders entitled to notice of and
to vote at the meeting and any adjournment thereof.
EdgeMark stockholders have the right to demand an appraisal of the value of any
or all shares of EdgeMark Common Stock in the event that the Agreement and Plan
of Merger is adopted and the merger consummated. The right of any stockholder
to receive the value of his or her shares through the appraisal process is
contingent upon strict compliance with the procedures set forth in Section 262
of the Delaware General Corporation Law, a copy of which is included as Appendix
G to the accompanying Prospectus and Proxy Statement.
By Order of The Board of Directors,
CHARLES A. BRUNING, President
and Chief Executive Officer
February 23, 1994
PROSPECTUS AND PROXY STATEMENT
Special Meeting of Stockholders of
EDGEMARK FINANCIAL CORPORATION
Merchandise Mart Plaza
Suite 2400
Chicago, Illinois 60654
(312) 836-8000
To adopt
an Agreement and Plan of Merger
involving an Offering of Common Stock,
$1.00 par value, of
OLD KENT FINANCIAL CORPORATION
One Vandenberg Center
Grand Rapids, Michigan 49503
(616) 774-5000
INTRODUCTION AND SUMMARY
Introduction
Old Kent Financial Corporation ("Old Kent") and EdgeMark Financial Corporation
("EdgeMark") are furnishing this Prospectus and Proxy Statement and the
accompanying form of proxy to record holders of EdgeMark Common Stock, $1 par
value ("EdgeMark Common Stock"). The board of directors of EdgeMark is
soliciting proxies to vote at the special meeting of EdgeMark stockholders to be
held on April 5, 1994, and at any adjournment thereof. The stockholders'
meeting will be held at William Tell - Holiday Inn, 6201 Juliet Road,
Centuryside, Illinois, at 3:00 p.m., Chicago time.
The purpose of the special meeting of EdgeMark stockholders is to consider the
adoption of the Agreement and Plan of Merger (the "Plan of Merger") attached as
Appendix A to this Prospectus and Proxy Statement. The Plan of Merger provides
for the merger of EdgeMark with and into Old Kent-Illinois, Inc., a wholly-owned
subsidiary of Old Kent ("OKFC Subsidiary") (the "Merger").
The adoption of the Plan of Merger requires the affirmative vote of the
holders of a majority of the outstanding shares of EdgeMark Common Stock.
EdgeMark does not anticipate that any other matter will come before the special
meeting.
EdgeMark's board of directors voted without dissent to approve the Plan of
Merger at its November 1, 1993, meeting. (See "Voting and Management
Information--Interest of Certain Persons.")
The Prospectus and Proxy Statement has been released for mailing to EdgeMark
stockholders on or after February 23, 1994.
THE BOARD OF DIRECTORS OF EDGEMARK RECOMMENDS A VOTE FOR ADOPTION OF THE PLAN
OF MERGER.
Old Kent Financial Corporation
Old Kent is a bank holding company with its headquarters in Grand Rapids,
Michigan. At September 30, 1993, Old Kent, on a consolidated basis, had assets
of $9.5 billion, deposits of $7.7 billion, a net loan portfolio of $5.0 billion
and shareholders' equity of $793 million. Old Kent is the parent company of 16
commercial banks that operate 213 banking offices in over 100 Michigan and
Illinois communities. Old Kent also has 5 non-bank subsidiaries.
Old Kent and its subsidiaries are engaged in the business of commercial
banking and other related activities. The services offered by Old Kent cover a
wide spectrum of banking and fiduciary services. These include commercial and
retail loans, business and personal checking accounts, savings and individual
retirement accounts, time deposit instruments, automated transaction machine
services, credit cards, money transfer services, safe deposit facilities, cash
management, real estate and lease financing, international banking services,
credit life insurance, personal investment and brokerage services, and corporate
and personal trust services.
Old Kent's principal markets for financial services presently are the Michigan
and Illinois communities in which Old Kent subsidiaries are located and the
areas immediately surrounding these communities. The Grand Rapids market is the
source of a substantial portion of Old Kent's business, representing 40 percent
of total deposits and 42 percent of total loans as of September 30, 1993. The
foreign activities of Old Kent primarily involve time deposits with banks and
placements for domestic customers of the banks.
Old Kent's largest subsidiary is Old Kent Bank and Trust Company. At
September 30, 1993, Old Kent Bank and Trust Company had assets of $3.9 billion,
deposits of $3.1 billion and a net loan portfolio of $2.1 billion. At September
30, 1993, Old Kent Bank and Trust Company's assets represented 41 percent of Old
Kent's consolidated assets. Old Kent Bank and Trust Company is headquartered in
Grand Rapids, Michigan, and conducts a general commercial banking business with
individuals and corporate and governmental entities through 56 offices in the
Grand Rapids area. Old Kent Bank and Trust Company serves an area consisting
primarily of Kent, Ingham, Montcalm, Newaygo and eastern Ottawa Counties.
Old Kent's 15 other subsidiary banks ranged in size from $82 million to $1.5
billion in total assets as of September 30, 1993.
OKFC Subsidiary
Old Kent - Illinois, Inc. ("OKFC Subsidiary") is a wholly-owned subsidiary of
Old Kent. Its principal office is located at 105 S. York Street, Elmhurst,
Illinois 60126. OKFC Subsidiary's telephone number is (708) 941-6255. OKFC
Subsidiary is the parent company of Old Kent Bank.
-2-
EdgeMark
EdgeMark is a bank holding company located in Chicago, Illinois. At September
30, 1993, EdgeMark on a consolidated basis had assets of $534 million, deposits
of $474 million, a net loan portfolio of $335 million and stockholders' equity
of $40 million. EdgeMark is the parent company of five commercial banks located
in Chicago, Countryside, Lombard, Lockport, and Rosemont, Illinois, that operate
eight banking offices in six Illinois communities.
EdgeMark and its subsidiaries are engaged in the commercial banking and trust
business and other related activities. The services offered by EdgeMark include
taking deposits, making secured and unsecured loans, financing commercial
transactions, and performing corporate services.
EdgeMark's principal market for financial services is downtown Chicago and the
surrounding metropolitan area. EdgeMark has no material foreign assets or
operations.
Recent Developments
On November 30, 1993, EdgeMark sold substantially all of the assets of
EdgeMark Mortgage Corporation ("EMC"), a wholly owned subsidiary of one of
EdgeMark's subsidiary banks. The purchaser of these assets also assumed certain
of the liabilities of EMC. It is anticipated that the after tax net income
realized from the sale will be approximately $1,000,000, or $.66 per share of
EdgeMark Common Stock.
Summary of Certain Aspects of the Merger
EdgeMark stockholders should consider the following summary in conjunction
with the more detailed information appearing elsewhere in this Prospectus and
Proxy Statement.
Background of the Merger. EdgeMark's board of directors engaged DLJ, a
nationally recognized investment banking firm, to review EdgeMark's strategic
alternatives, including the possible sale, merger, consolidation or other
business combination involving EdgeMark. In the course of developing these
strategic alternatives, DLJ contacted a number of regional multi-bank holding
companies to determine if they were interested in affiliating with EdgeMark.
Thereafter, DLJ received expressions of interest from a number of regional bank
holding companies that were interested in exploring a possible affiliation with
EdgeMark. DLJ received three written indications of interest in mid-October of
1993. After reviewing these proposals, EdgeMark's board of directors decided to
proceed with negotiations with Old Kent. Following these negotiations, Old Kent
and EdgeMark entered into the Plan of Merger on November 1, 1993. Old Kent's
management and EdgeMark's management, and the respective representatives,
negotiated the purchase price and other terms of the Plan of Merger on an
arms-length basis.
-3-
The board of directors of EdgeMark has determined that the proposed Merger is
in the best interests of EdgeMark and its stockholders. The board believes that
the Merger provides to EdgeMark stockholders an opportunity to have an interest
in a larger and more diversified financial organization. The board believes
that the Merger will assist EdgeMark's subsidiaries in becoming more effective
competitors in their respective markets through access to greater financial and
managerial resources. The board also believes that the Merger will permit
achievement of greater economies of scale in the areas of regulatory compliance,
holding company management and capital formation. See "The Merger--Background
of the Merger."
Consideration to be Received in the Merger. If the Merger is consummated,
EdgeMark will be merged with and into OKFC Subsidiary. The surviving
corporation will be OKFC Subsidiary. The surviving corporation will own all of
the subsidiaries and other assets of EdgeMark.
Each share of EdgeMark Common Stock outstanding at the time the Merger becomes
effective will be converted into the number of shares of Old Kent Common Stock
equal to the "Conversion Ratio." The Conversion Ratio shall be equal to $42.79
divided by the "Old Kent Stock Price Per Share." The "Old Kent Stock Price Per
Share" will be the weighted average of all transactions reported for Old Kent
Common Stock on the Bloomberg Financial Markets System, or an equivalent system,
for each of the last ten trading days preceding the date of closing for which
transactions in Old Kent Common Stock are reported on that system (the "Pricing
Period"). Notwithstanding such weighted average, the Old Kent Stock Price Per
Share will not be more than $35 per share nor less than $31 per share. The
Conversion Ratio is subject to upward or downward adjustment upon the occurrence
of certain events specified in the Plan of Merger which result in changes in the
number of shares of EdgeMark Common Stock outstanding and certain other events
which could otherwise affect the nature or amount of the consideration to be
received by EdgeMark stockholders in exchange for their shares of EdgeMark
Common Stock. See "The Merger--Summary of the Terms of the Merger."
The following table shows a range of hypothetical Old Kent Stock Prices Per
Share, and the Conversion Ratios corresponding to each Old Kent Stock Price
Per Share.
<TABLE>
<CAPTION>
Average Conversion
Price Ratio
<S> <C> <C>
At or Above $35.00 1.2226
34.00 1.2585
33.00 1.2967
32.00 1.3372
At or Below 31.00 1.3803
</TABLE>
The following table shows the closing sale price of Old Kent Common Stock on the
dates listed and the corresponding Conversion Ratios that would apply if the
closing sale price shown were the average price of Old Kent Common Stock during
the Pricing Period.
-4-
<TABLE>
<CAPTION>
Closing Conversion
Date Sale Price Ratio
<S> <C> <C> <C>
November 1, 1993 (1) 33.125 1.2918
December 31, 1993 29.875 1.3803
January 31, 1994 31.125 1.3748
February 23, 1994
<FN>
(1) The last trading day before public announcement of the Plan of Merger.
</TABLE>
The price of $42.79 per share, which is divided by the Old Kent Stock Price
Per Share to yield the Conversion Ratio that determines the amount of Old Kent
Common Stock to be received by EdgeMark's stockholders, and the limits on the
range of the Conversion Ratio, were determined through the parties' negotiation
of the Plan of Merger (see "The Merger--Reasons for the Merger"). These terms
reflect EdgeMark and Old Kent's judgment as to the value of the shares of
EdgeMark Common Stock relative to the historical and anticipated market price of
Old Kent Common Stock.
The limits of the range of the Conversion Ratio (1.2226 and 1.3803) are
intended to limit the extent to which the amount of Old Kent Common Stock to be
received by EdgeMark's stockholders in the Merger is adjusted based on
extraordinary fluctuations in the market price of Old Kent Common Stock which
may be unrelated to Old Kent's financial condition or operations and therefore
should not cause adjustment of the Conversion Ratio beyond the limits of its
range. See "The Merger--Stock Price Condition" for a discussion of EdgeMark's
ability to avoid consummating the Merger in the event of an extraordinary
downward movement in the market price of Old Kent Common Stock which is
disproportionate to a group of comparable stocks.
Old Kent will not issue fractional shares of Old Kent Common Stock in the
Merger. A EdgeMark stockholder who would otherwise be entitled to receive a
fraction of a share of Old Kent Common Stock in the Merger will receive instead
an amount of cash determined by multiplying that fraction by the Old Kent Stock
Price Per Share.
Opinion of Financial Adviser. DLJ has rendered an opinion to the effect that
the Conversion Ratio contained in the Plan of Merger is fair, from a financial
point of view, to the holders of EdgeMark Common Stock. The opinion of DLJ is
attached as Appendix D. DLJ provides investment banking and brokerage services
to banking and other financial institutions, including Old Kent and EdgeMark.
For a more detailed description of this opinion, see "The Merger--Opinion of
Financial Adviser."
Consummation of the Merger. Consummation of the Merger is subject to certain
conditions, including among others that the stockholders of EdgeMark adopt the
Plan of Merger, that necessary regulatory approvals be obtained, that no
proceeding seeking to prevent the Merger is pending or threatened, and that Old
-5-
Kent and EdgeMark obtain various ancillary certificates, opinions and
agreements. EdgeMark will not be obligated to consummate the Closing at any
time when both of the following conditions exist: (i) the Old Kent Stock Price
Per Share is less than $28 per share, subject to certain adjustments provided in
the Plan of Merger; and (ii) the percentage determined by dividing the Old Kent
Stock Price Per Share by $33 is more than 15 percentage points less than the
percentage determined by dividing the aggregate price per share of certain
comparison stocks (as defined in the Plan of Merger) on the last day of the
Pricing Period by the aggregate price per share of those comparison stocks on
October 29, 1993 (the last business day before the date on which EdgeMark's
board of directors voted to approve the Plan of Merger), subject to certain
adjustments as provided in the Plan of Merger. At any time prior to the
effective time of the Merger, the boards of directors of Old Kent and EdgeMark
may by mutual consent abandon the Merger. Also, for certain specified reasons
the board of directors of either Old Kent or EdgeMark may abandon the Merger.
(See "The Merger--Conditions to the Merger and Abandonment.")
Under certain circumstances involving the acquisition of control of EdgeMark
by a party other than Old Kent, EdgeMark is required under the Plan of Merger to
pay to Old Kent a termination fee. The termination fee is payable only upon the
occurrence of certain events specified in the Plan of Merger. The effect of
this provision of the Plan of Merger may be to discourage other persons from
seeking an acquisition of EdgeMark. (See "The Merger--Termination Fee.")
It is expected that the closing of the Merger will occur, and the Merger will
become effective, on or before June 30, 1994.
Vote Required. Pursuant to Delaware law, the affirmative vote of the holders
of a majority of all outstanding shares of EdgeMark Common Stock is required to
adopt the Plan of Merger. Failures to vote, abstentions, and broker non-votes
will have the same effect as votes against approval of the Plan of Merger. As
of December 31, 1993, EdgeMark's directors and executive officers and their
affiliates held 26.55 percent of the outstanding shares of EdgeMark Common
Stock. (See "Voting and Management Information--Interest of Certain Persons.")
As of December 31, 1993, Old Kent's directors and executive officers and their
affiliates did not hold any shares of EdgeMark Common Stock. No approval by Old
Kent's shareholders is required.
Regulatory Approval. Consummation of the Merger is subject to the approval of
the Board of Governors of the Federal Reserve System (the "Federal Reserve
Board"). Old Kent filed its application for approval of the Merger with the
Federal Reserve Board on January 14, 1994. The Merger cannot be consummated for
a period of 30 days after receipt of the Federal Reserve Board's approval.
During this 30-day period, the United States Department of Justice may review
the competitive effects of the Merger to determine whether it will take action
to block the Merger.
The Merger is also subject to the approval of the Illinois Commissioner of
Banks and Trust Companies and the Commissioner of the Financial Institutions
Bureau, Michigan Department of Commerce. Old Kent has filed its applications
for approval of the Merger with these agencies.
-6-
Appraisal Rights. Holders of EdgeMark Common Stock who perfect their
appraisal rights in accordance with Section 262 of the Delaware General
Corporation Law will be entitled to receive, in lieu of the consideration
contemplated in the Plan of Merger, following the commencement and conclusion of
a statutory appraisal proceeding in the Delaware Court of Chancery, the amount
of the fair value of their shares as determined by the court in the appraisal
proceeding. In order to demand appraisal and payment for shares, a stockholder
(i) must deliver a written demand for appraisal of his or her shares to EdgeMark
before the vote on the Plan of Merger; and (ii) must not vote in favor of the
Plan of Merger. All written demands for appraisal should be delivered to
EdgeMark at its principal executive offices at Merchandise Mart Plaza, Chicago,
Illinois 60654. Voting in favor of the Plan of Merger, or delivering a proxy in
connection with the special meeting (unless the proxy votes against or expressly
abstains from the vote on the Plan of Merger) will constitute a waiver of a
stockholder's appraisal rights. (See "Appraisal Rights." See also Appendix G
to this Prospectus and Proxy Statement, which contains the full text of Section
262 of the Delaware General Corporation Law.)
Federal Income Tax Consequences. As a condition precedent to consummation of
the Merger, Old Kent and EdgeMark must each receive an opinion from Old Kent's
counsel regarding the federal income tax consequences of the Merger. Such
opinion of Old Kent's counsel must be substantially to the effect, among other
matters, that EdgeMark stockholders will not recognize taxable income by reason
of receiving shares of Old Kent Common Stock in the Merger, that holders of
options to acquire EdgeMark Common Stock will not recognize taxable income by
reason of the amendment of the options as contemplated by the Plan of Merger and
that shares of Old Kent Common Stock which EdgeMark stockholders receive in the
Merger will have the same basis and holding period as the respective shares of
EdgeMark Common Stock surrendered in exchange therefor. Cash received in lieu
of fractional shares of Old Kent Common Stock will be taxable. (See "The
Merger--Federal Income Tax Consequences.")
Due to the complexities of federal, state and local income tax laws, it is
strongly recommended that EdgeMark stockholders consult their own tax advisers
concerning the federal, state and local tax consequences of the Merger.
Accounting Treatment. Old Kent expects to account for the Merger under the
purchase method of accounting.
Market Value of Shares
Old Kent Common Stock and EdgeMark Common Stock are both traded in the
over-the-counter market and are quoted on the NASDAQ National Market System
under the symbols OKEN and EDGE respectively. The following table sets forth
the last sale prices for Old Kent Common Stock and EdgeMark Common Stock
reported on the NASDAQ National Market System on November 1, 1993 (the last
trading date before the public announcement of the signing of the Plan of
Merger), and February 23, 1994, and the equivalent per share market value for
EdgeMark Common Stock giving effect to the Merger as of the same dates.
-7-
<TABLE>
<CAPTION>
Old Kent
Common Stock EdgeMark Common Stock
Equivalent
Date Actual Price Actual Price Per Share(1)
<S> <C> <C> <C> <C>
November 1, 1993 $33.125 $23.750 $42.79
February 23, 1994
<FN>
_______________________
(1) The equivalent per share price of EdgeMark Common Stock is the market value
of Old Kent Common Stock which would be received for each share of EdgeMark
Common Stock if the average price of Old Kent Common Stock during the Pricing
Period used to determine the Conversion Ratio were to be the same as the actual
price of Old Kent Common Stock as of the dates indicated.
</TABLE>
As of October 31, 1993, there were 40,530,990 shares of Old Kent Common Stock
issued and outstanding held by 12,500 holders of record. As of February 17,
1994, there were 1,461,939 shares of EdgeMark Common Stock issued and
outstanding held by 401 holders of record.
In connection with the Merger, Old Kent intends to repurchase shares of Old
Kent Common Stock having an aggregate purchase price of $62 million in publicly
announced open market and privately negotiated purchases. These purchases may
occur before or after the effective date of the Merger. The effect of such
purchases is that the financial effect of the Merger on Old Kent will be similar
to that of a purchase of EdgeMark shares for cash. This stock repurchase is not
a term or condition of the Merger.
Old Kent and EdgeMark urge each EdgeMark stockholder to obtain a current
market quote on Old Kent Common Stock and EdgeMark Common Stock.
-8-
<TABLE>
Selected Financial Data
The following unaudited table presents selected historical financial information for Old Kent and EdgeMark. This information
should be read in conjunction with the financial statements and notes thereto included elsewhere in or incorporated by reference
into this Prospectus and Proxy Statement. See Appendixes E and F for more recent preliminary unaudited financial information
concerning EdgeMark and Old Kent, respectively, for the quarters and years ended December 31, 1993.
<CAPTION> Nine Months Ended
Year Ended December 31, September 30,
1988 1989 1990 1991 1992 1993
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
OLD KENT FINANCIAL CORPORATION
Income Statement Data:
Net Interest Income $ 264,990 $ 289,630 $ 311,253 $ 339,198 $ 385,608 $ 303,333
Provision for Loan Losses 17,266 24,110 32,097 39,812 57,712 26,429
Net Income 77,114 85,397 87,476 92,981 111,091 97,418
Balance Sheet Data (period end):
Assets $7,854,091 $8,127,210 $8,205,041 $8,826,139 $8,698,574 $9,515,445
Deposits 6,504,820 6,780,206 6,960,865 7,313,979 7,253,540 7,713,921
Loans 4,685,414 5,069,932 5,317,998 5,111,369 4,907,629 5,173,684
Long-term Debt 93,400 87,550 80,937 74,734 16,217 1,325
Shareholders' Equity 540,845 600,102 607,636 672,610 726,277 793,272
EDGEMARK FINANCIAL CORPORATION
Income Statement Data:
Net Interest Income $ 4,377 $ 18,656 $ 18,660 $ 20,175 $ 22,235 $ 17,145
Provision for Loan Losses 126 372 556 2,662 5,485 1,628
Net Income (Loss) 1,249 3,565 2,753 2,998 (2,724) 3,047
Balance Sheet Data (period end):
Assets $ 455,415 $ 447,710 $ 475,868 $ 516,943 $ 516,071 $ 533,799
Deposits 396,417 388,524 413,890 456,989 459,661 474,405
Loans 264,877 272,626 293,605 329,206 338,335 341,213
Debt 14,740 13,500 13,000
Shareholders' Equity 35,699 38,029 39,688 41,629 37,862 40,424
</TABLE>
-9-
Under the "risk-based" capital guidelines presently in effect for banks and
bank holding companies, minimum capital levels are based on the perceived risk
in the various asset categories. Certain off-balance-sheet instruments such as
loan commitments and letters of credit require capital allocations. Bank holding
companies are required to maintain minimum risk-based capital ratios. Old
Kent's ratios are above the regulatory minimum guidelines and each of its
subsidiary banks met the regulatory criteria to be categorized as "well
capitalized" institutions at September 30, 1993. EdgeMark met the regulatory
criteria to be categorized as an "adequately capitalized" institution at
September 30, 1993. The "well capitalized" classification permits financial
institutions to minimize the cost of FDIC insurance assessments by being charged
a lesser rate than those who do not meet this definition. Designation as a
"well capitalized" institution does not constitute a recommendation by federal
bank regulators. The following table shows capital ratios and requirements as
of September 30, 1993.
<TABLE>
<CAPTION>
Risk-based Capital
Leverage Tier 1 Total
<S> <C> <C> <C>
Old Kent's capital ratios 7.83% 12.82% 14.13%
EdgeMark's capital ratios 4.69 7.01 8.25
Pro forma combined capital ratios 7.30 12.00 13.25
Regulatory capital ratios -
"well capitalized" definition 5.0 6.0 10.0
Regulatory capital ratios -
minimum requirement 3.0 4.0 8.0
</TABLE>
-10-
Comparative Per Share Data
The following unaudited table sets forth certain historical and pro forma
combined per common share information for Old Kent, and certain historical and
equivalent pro forma combined per common share information for EdgeMark. The
data are derived from financial statements of Old Kent and EdgeMark incorporated
by reference or included elsewhere in this Prospectus and Proxy Statement. The
pro forma data do not purport to be indicative of the results of future
operations or the actual results that would have occurred had the Merger been
consummated at the beginning of the period presented. The pro forma financial
data have been included as required by the rules of the Securities and Exchange
Commission and are provided for comparative purposes only. The pro forma
combined per common share information for Old Kent and the equivalent pro forma
combined per common share information for EdgeMark are stated as if the Merger
had taken place on the first day of each period presented. The information
presented below has been restated to reflect stock dividends and stock splits.
See Appendixes E and F for more recent preliminary unaudited financial
information concerning EdgeMark and Old Kent, respectively, for the quarters and
years ended December 31, 1993.
<TABLE>
<CAPTION>
Year Ended December 31, Nine Months Ended
1988 1989 1990 1991 1992 September 30, 1993
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
HISTORICAL PER SHARE DATA
Old Kent Financial Corporation
Net Income per Common Share:
Primary 1.97 2.15 2.19 2.31 2.75 2.39
Fully Diluted 1.75 1.93 2.08 2.21 2.71 2.39
Cash Dividends Paid per
Common Share 0.583 0.637 0.723 0.787 0.903 0.780
Book Value per Common
Share (at period end):
Primary 13.58 14.93 15.22 16.75 17.96 19.57
Fully Diluted 12.69 14.05 15.21 16.74 17.96 19.57
EdgeMark
Net Income (Loss) per Common Share:
Primary 3.17 1.84 1.24 1.51 (2.41) 1.68
Fully Diluted 3.17 1.84 1.24 1.51 (2.41) 1.68
Cash Dividends Paid per
Common Share 0.25 0.25 0.25 0.25 0.25 0.10
Book Value per Common
Share (at period end):
Primary 19.02 20.43 21.90 23.28 20.70 22.38
Fully Diluted 19.02 20.43 21.90 23.28 20.70 22.38
Pro Forma Combined (3)
Net Income per Common Share:
Primary 2.58 2.37
Fully Diluted 2.53 2.37
Cash Dividends Paid per Common Share(1) 0.903 0.780
Book Value per Common Share (at period end) 17.96 19.57
</TABLE>
-11-
<TABLE>
<CAPTION>
Year Ended December 31, Nine Months Ended
1992 September 30, 1993
(Dollars in thousands)
<S> <C> <C>
Equivalent Pro Forma Combined
Per EdgeMark Share(2)(3)
Net Income per Common Share:
Primary 3.35 3.07
Fully Diluted 3.28 3.07
Cash Dividends Paid per
Common Share 1.17 1.01
Book Value per Common
Share (at period end) 23.29 25.38
<FN>
_________________________
(1) For the purposes of this presentation, the pro forma combined cash dividends paid per common share are assumed to be the same
as the cash dividends paid per common share by Old Kent on an historical basis during the periods indicated. On November 15,
1993, the Old Kent board of directors increased the quarterly dividend on Old Kent Common Stock to $.29 per share.
(2) The EdgeMark equivalent pro forma combined per common share information is calculated by multiplying the Old Kent pro forma
combined per common share data by the Conversion Ratio of 1.2967 shares of Old Kent Common Stock for each share of EdgeMark Common
Stock. This Conversion Ratio assumes an "Old Kent Stock Price Per Share" of $33, which is midway between the $35 upper limit and
the $31 lower limit for that value provided under the Plan of Merger.
(3) Pro forma combined and equivalent pro forma combined data are computed assuming that Old Kent had completed market purchases
of 1,923,000 shares of Old Kent Common Stock at $33 per share, which is the Old Kent Stock Price Per Share assumed in these pro
forma computations, at an aggregate purchase price of $62 million. Old Kent has publicly announced its intention to purchase
shares of its common stock having an aggregate cost of $62 million in connection with the Merger. However, such repurchases are
not a term or condition of the Merger, there is no assurance that such purchases will in fact be made, and it is not possible to
ascertain the total number of shares or average price of shares which will be purchased in the future.
(4) For purposes of this presentation, the pro forma combined net income per common share, and book value per common share (as
well as their respective "Equivalent Pro Forma Combined Per EdgeMark Share") reflect the following adjustments:
-12-
(a) The estimated effect of Old Kent's associated stock repurchases of a number of shares similar in amount to those to
be issued to Edgemark Stockholders.
(b) The estimated amount of additional expense related to amortization of intangible assets and other adjustments
resulting from the proposed transaction.
(c) The elimination of a nonrecurring operational charge of $2.4 million recorded by EdgeMark in 1992.
(d) Profitability improvements expected to result from integrating the operations of EdgeMark with Old Kent have not been
reflected in the pro forma data presented.
</TABLE>
-13-
GENERAL MEETING INFORMATION
Purpose
The special meeting will be held for the purpose of considering and voting
upon a proposal to adopt the Plan of Merger and to transact any and all other
business that may properly come before the meeting, or any adjournment thereof.
Voting by Proxy
If an EdgeMark stockholder properly executes and returns a proxy in the
form distributed by EdgeMark, the proxies named will vote the shares
represented by that proxy at the special meeting of stockholders of EdgeMark,
and at any adjournment thereof. Where a stockholder specifies a choice, the
proxy will be voted in accordance with the stockholder's specification. If no
specific direction is given, the proxies will vote the shares in favor of
adoption of the Plan of Merger.
EdgeMark's management does not currently know of any other matter to be
presented at the special meeting. If other matters are presented, the shares
for which proxies have been received will be voted in accordance with the
discretion of the proxies.
A stockholder may revoke a proxy at any time prior to its exercise by
written notice delivered to the corporate secretary of EdgeMark or by voting in
person.
Proxy Solicitation
The board of directors and management of EdgeMark will initially solicit
proxies by mail. If they deem it advisable, officers, directors and employees
of EdgeMark and its subsidiaries may also solicit proxies in person or by
telephone without additional compensation. In addition, nominees and other
fiduciaries may also solicit proxies. Such persons may at the request of
EdgeMark's management mail material to or otherwise communicate with the
beneficial owners of shares held by them. Although it does not presently plan
to do so, EdgeMark's management may request officers, directors and employees
of Old Kent and its subsidiaries to assist in the proxy solicitation. If
management makes such a request, such persons may also solicit proxies of
EdgeMark stockholders by mail, telephone and personal interview without
additional compensation.
Voting Rights and Record Date
Only stockholders of record of EdgeMark Common Stock at the close of
business on February 17, 1994 (the "Record Date"), are entitled to notice of
and to vote at the special meeting or at any adjournment thereof. At the close
of business on the Record Date, 1,461,939 shares of EdgeMark Common Stock were
-14-
issued and outstanding. As of December 31, 1993, 417,540 shares or 26.55%
of the outstanding shares of EdgeMark Common Stock were beneficially owned by
directors and executive officers of EdgeMark and their affiliates. These
individuals have agreed that they will cause their personal shares of EdgeMark
stock to be voted in favor of the adoption of the Plan of Merger. Each holder
of record of EdgeMark Common Stock on the Record Date will be entitled to one
vote for each share registered in his or her name on each matter presented to a
vote of the stockholders at the special meeting. The Merger must be adopted by
the affirmative vote of the holders of a majority of the outstanding shares of
EdgeMark Common Stock.
Expenses
Old Kent will pay all printing expenses and filing fees pertaining to the
Registration Statement. EdgeMark will pay all expenses associated with
printing and mailing the Prospectus and Proxy Statement, including all expenses
for postage, labor and materials. Except in the case of certain intentional
breaches of the Plan of Merger by Old Kent or EdgeMark, if the Plan of Merger
is terminated before the Merger becomes effective, Old Kent and EdgeMark each
will pay its own fees and expenses incident to preparing for, entering into and
carrying out the Plan of Merger, and to procuring any necessary approvals,
including fees and expenses of its own legal counsel, accountants and other
experts.
THE MERGER
The respective boards of directors of Old Kent, OKFC Subsidiary and
EdgeMark have approved an Agreement and Plan of Merger dated as of November 1,
1993 (the "Plan of Merger.").
The following discussion summarizes certain provisions of the Plan of
Merger and aspects of the Merger. This summary discussion does not purport to
be a complete description of the Merger and is qualified in its entirety by
reference to the Plan of Merger. The Plan of Merger is attached as Appendix A
and incorporated by reference in this Prospectus and Proxy Statement.
Background of the Merger
In April of 1993, EdgeMark contacted DLJ to discuss whether DLJ could be
engaged to assist EdgeMark in developing strategic alternatives. EdgeMark
contacted DLJ because it is a nationally recognized investment banking firm
regularly engaged, with respect to bank holding companies and other
corporations, in the valuation of businesses and their securities. DLJ made a
presentation to EdgeMark's board of directors in May of 1993. Shortly
thereafter, EdgeMark engaged DLJ to act as EdgeMark's exclusive financial
adviser with respect to a review of EdgeMark's strategic alternatives including
the possible sale, merger, consolidation or other business combination
involving EdgeMark.
-15-
The board of directors of EdgeMark had considered for some time EdgeMark's
future role in the changing banking environment. The board considered such
things as potential increased competition from bank and non-bank sources,
prospects for future growth through mergers and acquisition in Illinois and
other states where Illinois banks are permitted by law to acquire banks as well
as the ability of EdgeMark's banking subsidiaries to develop new products on a
profitable basis. In light of the foregoing, the board concluded that
affiliation of EdgeMark with a major banking organization with substantial
resources could possibly be in the best interest of EdgeMark's stockholders,
employees, and communities. For this and other reasons, the board elected to
engage the services of DLJ.
Following its engagement, DLJ delivered to EdgeMark an outline of its
proposed strategic analysis and began reviewing documents delivered by EdgeMark
to DLJ for purposes of developing strategic alternatives. During June and July
of 1993, DLJ also made preliminary contact with a number of regional multi-bank
holding companies to determine if any of them were interested in affiliating
with EdgeMark. No formal discussions or negotiations with such companies were
undertaken at this point.
By the early part of August of 1993, DLJ had been advised by a number of
regional multi-bank holding companies, including Old Kent, that they were
interested in exploring on a preliminary basis a possible affiliation with
EdgeMark. DLJ asked each of these companies to sign confidentiality agreements
and made arrangements with them to review financial and other information about
EdgeMark that DLJ had collected from EdgeMark. These reviews, including the
one conducted by Old Kent, took place at DLJ's Chicago office during August and
September of 1993. At EdgeMark's August board meeting, DLJ advised the board
that DLJ expected that a number of regional bank holding companies would be
conducting their reviews of this information in the near future and that DLJ
expected to have indications of interest from them in the near future.
In mid-October of 1993, DLJ contacted EdgeMark and advised EdgeMark that
it had received three written indications of interest from regional multi-bank
holding companies which were interested in affiliating with EdgeMark. On
October 21, 1993, EdgeMark's board met with representatives of DLJ and Pope,
Ballard, Shepard & Fowle, Ltd., a law firm with extensive experience in
representing financial institutions ("Pope-Ballard"), to assist the board in
evaluating these indications of interest.
At this meeting DLJ reviewed the financial terms of each indication of
interest in detail with the board. Of the three indications received, one was
significantly lower than the other two. After consideration, the board
determined to focus its efforts on reviewing the remaining two indications of
interest.
After considerable discussion, the board instructed management, DLJ and
Pope-Ballard to pursue negotiations with Old Kent as expeditiously as possible
to see if a definitive agreement could be negotiated. The board determined,
with the assistance of DLJ, that Old Kent was the preferred bidder due to its
perceived ability to offer superior financial terms, the tax free nature of its
indication of interest, and the perception that in terms of operations and
-16-
management style, Old Kent was a more attractive merger partner. At the
board's direction, DLJ and Pope-Ballard commenced negotiations with Old Kent.
EdgeMark's board of directors met again on November 1, 1993. At this
meeting, the board listened to a presentation made by representations of Old
Kent at which time the board members asked various questions of the Old Kent
representatives. Following these discussions, the board met with
representatives of DLJ and Pope-Ballard to review Old Kent's revised indication
of interest and the draft of the Plan of Merger, as well as the indication of
interest received from the other bidder. DLJ's representatives again reviewed
in detail the Old Kent's indication of interest and DLJ's negotiations with Old
Kent since October 21, 1993.
Following DLJ's presentation, Pope-Ballard then reviewed in detail the
Plan of Merger that had been negotiated with Old Kent. The representative of
Pope-Ballard advised the board of the various issues that had been raised with
Old Kent during the course of the negotiations and the outcome of these
discussions. After considerable discussion, DLJ delivered an oral opinion that
the Conversion Ratio set forth in the Plan of Merger was fair, from a financial
point of view, to the stockholders of EdgeMark. Following the receipt of this
opinion, EdgeMark's board unanimously approved the Plan of Merger and
authorized its execution. Prior to the opening of business on November 2,
1993, EdgeMark and Old Kent issued a joint press release announcing the
execution of the Plan of Merger.
Old Kent's board of directors believes the proposed Merger will enable Old
Kent to improve its geographic diversification by expanding Old Kent's presence
in the Chicago area. The board of directors believes that the Merger will
permit the achievement of certain economies of scale with respect to Old Kent's
business conducted in the Chicago area and other Illinois communities.
Merger Recommendation and Reasons for Transaction
The terms of the Merger and the Plan of Merger, including the Conversion
Ratio, were the result of arms-length negotiations between EdgeMark and Old
Kent and their respective representatives. In the course of reaching its
decision to approve the Plan of Merger, the board of directors of EdgeMark
consulted with its legal and financial advisers as well as with management of
EdgeMark and, without assigning any relative or specific weights, considered
numerous factors, including but not limited to the following:
(1) The Old Kent indication of interest would result in a tax deferred
gain to EdgeMark's stockholders.
(2) The Plan of Merger provided for a conversion ratio, including a
floating exchange ratio which contemplated an upper and lower collar which
would set a minimum and maximum number of shares to be issued, and a "walk-
away" right that would permit EdgeMark to terminate the Merger if the Old Kent
Stock Price Per Share declined more rapidly than a comparable group
of stocks.
-17-
(3) A business combination with a larger bank holding company, such as
Old Kent, would provide both greater short-term and long-term value to
EdgeMark's stockholders than other alternatives available and would enhance
EdgeMark's competitiveness and its ability to serve its depositors,
customers and the communities in which it operates;
(4) Old Kent's significant long-term experience in integrating the
operations of banks and bank holding companies;
(5) The economic conditions and prospects for the market in which
EdgeMark operates, and competitive pressures in the financial services industry
in general and the banking industry in particular;
(6) The Merger offered EdgeMark's stockholders the prospect for higher
dividends, a higher current trading value for their shares, greater liquidity
for their shares and better prospects for future growth than if EdgeMark were
to remain independent;
(7) The bank regulatory environment in general;
(8) The business, results of operations, asset quality and financial
condition of Old Kent, the future growth prospects of Old Kent and
EdgeMark following the Merger and the potential synergies and cost savings
expected to be realized from the Merger; and
(9) The presentations of EdgeMark's financial adviser, DLJ, and the
opinion rendered by DLJ to the effect that the Conversion Ratio was
fair, from a financial point of view, to the holders of EdgeMark's Common
Stock. See "The Merger--Opinion of Financial Adviser."
As of December 31, 1993, the directors and executive officers of
EdgeMark, together with their affiliates and associates, as a group, were
entitled to vote approximately 417,540 shares of EdgeMark Common Stock
representing approximately 26.55% of the shares outstanding. These persons will
be entitled to receive the same consideration for their shares as any other
EdgeMark stockholder upon approval of the Merger. Under the terms of the
Affiliates' Agreement, these directors' and executive officers' shares will be
voted in favor of the Merger (See "The Merger--Agreements of Affiliates").
After the Merger, EdgeMark's directors and executive officers will own
approximately 1.34% of the shares of Old Kent Common Stock outstanding.
EDGEMARK'S BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT THE PLAN OF MERGER BE
APPROVED BY THE STOCKHOLDERS OF EDGEMARK.
Opinion of Financial Adviser
In June of 1993, the EdgeMark board of directors retained Donaldson,
Lufkin & Jenrette Securities Corporation ("DLJ") to act as EdgeMark's exclusive
financial adviser with respect to a review of EdgeMark's strategic alternatives
and the possible sale, merger, consolidation or any other business combination,
in one or a series of transactions, involving all or a substantial amount of
-18-
the business, securities or assets of EdgeMark. As part of its services, DLJ
analyzed EdgeMark and its operations, historical performance and future
prospects; identified and contacted selected bank holding companies acceptable
to the EdgeMark board of directors to solicit indications of interest in a
possible business combination with EdgeMark; participated in negotiations
concerning the financial aspects of the Plan of Merger under the guidance of
the EdgeMark board of directors, and provided an opinion as to the fairness,
from a financial point of view, of the Conversion Ratio to the holders of
EdgeMark Common Stock.
DLJ is a nationally recognized investment banking firm regularly engaged,
with respect to bank holding companies and other corporations, in the valuation
of businesses and their securities in connection with mergers and acquisitions,
negotiated underwritings, competitive biddings, secondary distributions of
listed and unlisted securities, private placements, and valuations for
corporate and other purposes. The EdgeMark board of directors selected DLJ on
the basis of its familiarity with the financial services industry, its
qualifications, ability, previous experience and its reputation with respect to
mergers and acquisitions. No limitations were imposed by the EdgeMark board of
directors upon DLJ with respect to the investigations made or procedures
followed by DLJ in rendering its opinion.
DLJ has rendered a written opinion to the EdgeMark board of directors to
the effect that, as of the date of this Prospectus and Proxy Statement, the
Conversion Ratio is fair, from a financial point of view, to the holders of
EdgeMark Common Stock. Such opinion describes the assumptions made, matters
considered and the scope of the review undertaken and procedures followed by
DLJ. DLJ's opinion is attached hereto as Appendix D and is incorporated herein
by reference. STOCKHOLDERS ARE ENCOURAGED TO READ SUCH OPINION IN ITS
ENTIRETY.
DLJ's opinion is directed to the EdgeMark board of directors only and is
directed only to the Conversion Ratio and does not constitute a recommendation
to any holder of EdgeMark Common Stock as to how such holder should vote at the
EdgeMark special meeting of stockholders.
For purposes of its opinion and in connection with its review of the
proposed transaction, DLJ, among other things: (a) participated in discussions
and negotiations among representatives of EdgeMark and Old Kent and their
respective legal advisers that resulted in the Plan of Merger; (b) reviewed the
Plan of Merger, and this Prospectus and Proxy Statement; (c) reviewed certain
publicly available financial statements, both audited and unaudited, for
EdgeMark and Old Kent, including those included in the Annual Report on Form
10-K for the year ended December 31, 1992, the Quarterly Reports on Form 10-Q
for the periods ended March 31, 1993, June 30, 1993, and September 30, 1993,
and the most recent regular annual proxy statement available as of November 1,
1993, for EdgeMark and Old Kent; (d) reviewed certain financial statements and
other financial and operating data concerning EdgeMark and Old Kent prepared by
their respective managements; (e) reviewed certain financial projections of
EdgeMark and Old Kent, both on a stand-alone and on a combined basis, prepared
by their respective managements; (f) discussed certain aspects of the past and
current business operations, results of regulatory examinations, financial
-19-
condition and future prospects of EdgeMark and Old Kent with certain members of
the management of EdgeMark and Old Kent; (g) reviewed reported market prices
and historical trading activity of EdgeMark Common Stock and Old Kent Common
Stock; (h) reviewed certain aspects of the financial performance of
EdgeMark and Old Kent and compared such financial performance of EdgeMark
and Old Kent together with the stock market data relating to EdgeMark and Old
Kent with similar data available for certain other financial institutions and
certain of their publicly traded securities; (i) reviewed certain of the
financial terms, to the extent publicly available, of certain recent business
combinations involving other financial institutions; and (j) conducted such
other studies, analyses and examinations as DLJ deemed appropriate.
DLJ relied upon and assumed without independent verification the accuracy
and completeness of all of the financial and other information provided to it
by EdgeMark, Old Kent and their respective representatives and of the publicly
available information reviewed by DLJ. DLJ also relied upon the managements of
both EdgeMark and Old Kent as to the reasonableness and achievability of the
financial and operating forecasts provided to DLJ (and the assumptions and bases
therefor). In that regard, DLJ assumed that such forecasts, including without
limitation projected cost savings and operating synergies resulting from the
Merger, reflect the best currently available estimates and judgments of such
respective managements and that such projections and forecasts will be realized
in the amounts and in the time periods currently estimated by the managements of
both EdgeMark and Old Kent. DLJ did not independently verify and relied on and
assumed that the aggregate allowances for loan losses set forth in the balance
sheet of each of EdgeMark and Old Kent at September 30, 1993, were adequate to
cover such losses and complied fully with applicable law, regulatory policy and
sound banking practice as of the date of such financial statements. DLJ did not
independently verify the carrying values of other real estate owned and loans
classified as in-substance foreclosures of each of EdgeMark and Old Kent in
their respective September 30, 1993, balance sheets, and DLJ assumed that such
carrying values complied fully with applicable law, regulatory policy and sound
banking practice as of such date. DLJ was not retained to and did not conduct a
physical inspection of any of the properties or facilities of EdgeMark or Old
Kent, nor did DLJ make any independent evaluation or appraisal of the assets,
liabilities or prospects of EdgeMark or Old Kent, was not furnished with any
such evaluation or appraisal, and did not review any individual credit files.
DLJ also assumed that the Merger is, and will be, in compliance with all laws
and regulations that are applicable to EdgeMark and Old Kent. DLJ assumed for
purposes of its opinion that the Merger will be recorded as a purchase under
generally accepted accounting principles.
Prior to rendering its written opinion dated as of the date of this
Prospectus and Proxy Statement to the EdgeMark board of directors, DLJ rendered
an oral opinion to the EdgeMark board of directors on November 1, 1993. Set
forth below is a brief summary of the analyses performed by DLJ in reaching its
November 1, 1993, opinion.
-20-
Stock Trading History. DLJ examined the history of trading prices and
volume for EdgeMark Common Stock and Old Kent Common Stock and the relationship
between the movements of such common stock prices to the market prices of the
common stocks of the companies in the EdgeMark Peer Group (as defined below)
and the DLJ Midwest Universe (as defined below).
Discounted Cash Flow Analysis. Using discounted cash flow analysis, DLJ
estimated the future dividend streams that EdgeMark could produce over the
period from September 30, 1993, through December 31, 1997, assuming a minimum
required tangible equity level of 6.0% of tangible total assets, if EdgeMark
performed in accordance with management's forecast. DLJ also estimated the
terminal value of EdgeMark's common equity as of December 31, 1997, by applying
a range of multiples to EdgeMark's projected 1997 earnings. The dividend
streams and terminal value were discounted to present values as of September 30,
1993, using discount rates ranging from 12% to 14%, which reflect different
assumptions regarding the required rates of return of holders and
prospective buyers of EdgeMark Common Stock. The range of present values per
fully diluted share of EdgeMark Common Stock resulting from this analysis was
$25.43 to $35.38.
Comparison with Selected Companies. DLJ compared selected financial
ratios for EdgeMark to the corresponding ratios of the "EdgeMark Peer Group"
(consisting of CBT Corporation of Paducah, Kentucky; First National Bank Corp.
of Clinton Township, Michigan; First Oak Brook Bancshares, Inc. of Oak Brook,
Illinois; First Merchants Corporation of Muncie, Indiana; Irwin Financial
Corporation of Columbus, Indiana; National City Bancorporation of Minneapolis,
Minnesota; Northwest Illinois Bancorp, Inc. of Freeport, Illinois; Premier
Financial Services, Inc. of Freeport, Illinois; Princeton National Bancorp of
Princeton, Illinois; Second Bancorp, Incorporated of Warren, Ohio; and
Shoreline Financial Corporation of Benton Harbor, Michigan) and for Old Kent to
the corresponding ratios of the "DLJ Midwest Universe" (consisting of Banc One
Corporation of Columbus, Ohio; Boatmen's Bancshares, Inc. of St. Louis,
Missouri; Comerica Incorporated of Detroit, Michigan; Fifth Third Bancorp of
Cincinnati, Ohio; First Bank System, Inc. of Minneapolis, Minnesota; First of
America Bank Corporation of Kalamazoo, Michigan; Huntington Bancshares
Incorporated of Columbus, Ohio; National City Corporation of Cleveland, Ohio;
NBD Bancorp, Inc. of Detroit, Michigan; Norwest Corporation of Minneapolis,
Minnesota; and Society Corporation of Cleveland, Ohio). Such ratios included:
tangible equity to assets, return on average total assets, return on average
total equity, loan loss reserve to nonperforming loans (defined as nonaccrual
loans, loans 90 days or more past due but still accruing interest and
renegotiated loans), nonperforming assets (defined as nonperforming loans plus
other real estate owned) to total loans plus other real estate owned, market
price to 1993 estimated earnings per share ("EPS"), market price to tangible
book value per share, and market price to book value per share. All ratios
were based on financial data at or for the twelve months ended September 30,
1993, and market prices as of October 29, 1993.
DLJ compared the mean values for each of such ratios for the EdgeMark Peer
Group with the corresponding ratio for EdgeMark. This analysis showed that the
EdgeMark Peer Group had a mean tangible equity to assets ratio of 9.13%, as
compared with 4.69% for EdgeMark; a mean return on average total assets of
-21-
1.22%, as compared with 0.77% for EdgeMark; a mean return on average total
equity of 13.1%, as compared with 10.4% for EdgeMark; a mean ratio of loan loss
reserve to nonperforming loans of 315.6%, as compared with 129.1% for EdgeMark;
a mean ratio of nonperforming assets to total loans plus other real estate
owned of 0.88%, as compared with 1.78% for EdgeMark; a mean ratio of price to
1993 Estimated EPS of 11.7 times, as compared with 9.4 times for EdgeMark; a
mean ratio of market price to tangible book value per share of 1.55 times, as
compared with 2.09 times for EdgeMark; and a mean ratio of market price to book
value per share of 1.46 times, as compared with 1.05 times for EdgeMark.
DLJ also compared the mean values for each of such ratios, for the DLJ
Midwest Universe with the corresponding ratio for Old Kent. This analysis
showed that the DLJ Midwest Universe had a mean tangible equity to assets ratio
of 7.26%, as compared with 7.79% for Old Kent; a mean return on average total
assets of 1.27%, as compared with 1.40% for Old Kent; a mean return on average
total equity of 15.8%, as compared with 17.0% for Old Kent; a mean ratio of
loan loss reserve to nonperforming loans of 284.1%, as compared with 201.6% for
Old Kent; a mean ratio of nonperforming assets to loans plus other real estate
owned of 1.33%, as compared with 1.51% for Old Kent; a mean ratio of market
price to 1993 estimated EPS of 11.0 times, as compared with 10.5 times for Old
Kent; a mean ratio of market price to tangible book value per share of 1.92
times, as compared with 1.69 times for Old Kent; and a mean ratio of market
price to book value per share of 1.87 times, as compared with 1.69 times for
Old Kent.
Analysis of Selected Merger Transactions. DLJ reviewed selected mergers
involving acquisitions of Midwestern banks or bank holding companies announced
between January 1, 1991, and October 26, 1993, in which the total assets of the
acquired institution was between $250 million and $1.5 billion. Specifically,
DLJ reviewed the mergers involving the following pairs of institutions:
BanPonce Corporation/Pioneer Bancorp, Mercantile Bancorporation, Inc./Metro
Bancorporation, Banc One Corporation/First Financial Associates, United
Missouri Bancshares, Inc./CNB Financial Corporation, Old National Bancorp/DCB
Corporation, Hawkeye Bancorporation/First Dubuque Corporation, Banc One
Corporation/First Community Bancorp, Mercantile Bancorporation, Inc./Mid-
American Corporation, Coal City Corporation/Manufacturers National Corporation,
Banc One Corporation/Jefferson Bancorp, Inc., Commerce Bancshares, Inc./First
Peoria Corp., Mercantile Bancorporation, Inc./Ameribanc, Inc., CNB Bancshares,
Inc./Indiana Bancshares, Boatmen's Bancshares, Inc./First Interstate of Iowa,
Inc., Associated Banc Corporation/F&M Financial Services Corporation, NBD
Bancorp, Inc./Gainer Corporation, Banc One Corporation/Marine Corporation, NBD
Bancorp, Inc./FNW Bancorp, Inc., and Firstbank of Illinois Corporation/Central
Banc System, Inc. DLJ calculated the multiples of the offer value over the
market price, LTM EPS, book value per share and tangible book value per share
of the acquired company in each transaction. The calculations yielded a range
of multiples of offer value to market price of 1.17 times to 1.72 times, with a
mean of 1.42 times and a median of 1.41 times; a range of multiples of offer
value to LTM EPS of 9.3 times to 44.4 times, with a mean of 18.0 times and a
median of 15.3 times; a range of multiples of offer value to book value of 1.03
times to 2.23 times, with a mean of 1.57 times and median of 1.53 times, and a
range of multiples of offer value to tangible book value of 1.09 times to 2.48
times, with a mean of 1.71 times and a median of 1.66 times.
-22-
DLJ compared these multiples with the corresponding multiples for the
Merger, valuing the shares of Old Kent Common Stock that would be received
pursuant to the Plan of Merger at $42.79 (the "Collar Value") and $38.65 (the
"Walkaway Value") per share Edgemark Common Stock. In calculating the
multiples for the Merger, DLJ used the closing price per share of EdgeMark
Common Stock on October 29, 1993, estimated EPS for the year ending December
31, 1993, book value per share and tangible book value per share as of
September 30, 1993. At the Collar Value, the multiples of EdgeMark's market
price per share, 1993 estimated EPS, book value per share and tangible book
value were 1.82 times, 17.2 times, 1.91 times and 3.81 times, respectively. At
the Walkaway Value, the multiples of EdgeMark's market price per share, 1993
estimated EPS, book value per share and tangible book value per share were 1.64
times, 15.5 times, 1.73 times and 3.44 times, respectively.
No company or transaction used in the above analysis as a comparison is
identical to EdgeMark, Old Kent or the Merger. Accordingly, an analysis of the
results of the foregoing is not mathematical; rather, it involves complex
considerations and judgments concerning differences in financial and operating
characteristics of the companies and other facts that could affect the public
trading value of the companies to which they are being compared.
Pro Forma Merger Analysis. In the course of discussions preceding
execution of the Merger Agreement, Old Kent informed DLJ that with various cost
savings and revenue enhancements combined with continued credit improvement at
EdgeMark, Old Kent expected the transaction to be modestly accretive to
earnings (approximately $0.02 per share) within twelve months of the effective
time of the Merger. Old Kent also informed DLJ that it anticipated the
transaction would be modestly dilutive to Old Kent's tangible book value per
share.
DLJ also analyzed certain additional pro forma effects of the Merger.
DLJ's analysis showed that holders of EdgeMark Common Stock would experience an
increase in dividend income of from 468% to 540%, based on EdgeMark's and Old
Kent's current dividend payments as of November 1, 1993; and that the shares of
Old Kent Common Stock issued in the Merger would represent from 4.2% to 4.7% of
the pro forma total number of outstanding shares of Old Kent Common Stock.
In connection with its written opinion dated as of the date of this
Prospectus and Proxy Statement, DLJ performed procedures to update certain of
its analyses and reviewed the assumptions on which such analyses were based and
the factors considered in connection therewith.
Although the summary set forth above does not purport to be a complete
description of the analyses performed by DLJ, the material analyses performed
by DLJ in rendering its opinion have been summarized above. However, the
preparation of a fairness opinion is not necessarily susceptible to partial
analysis or summary description. DLJ believes that its analyses
and the summary set forth above must be considered as a whole and that selecting
portions of its analyses, without considering all factors and analyses, would
create an incomplete view of the process underlying the analyses by which DLJ
reached its opinions. In addition, DLJ may have given various analyses more or
less weight than any other analysis, but no analysis was given materially more
-23-
weight than any other analysis. Also, DLJ may have deemed various assumptions
more or less probable than other assumptions, so that the ranges of valuations
resulting from any particular analysis described above should not be taken to
be DLJ's view of the actual value of EdgeMark or the combined company.
In performing its analyses, DLJ made numerous assumptions with respect to
industry performance, general business and economic conditions and other
matters, many of which are beyond the control of EdgeMark and Old Kent. The
analyses performed by DLJ are not necessarily indicative of actual value or
actual future results, which may be significantly more or less favorable than
suggested by such analyses. Such analyses were prepared solely as part of
DLJ's analysis of the fairness, from a financial point of view, of the
Conversion Ratio. The analyses do not purport to be appraisals or to reflect
the prices at which a company might actually be sold or the prices at which any
securities may trade at the present time or at any time in the future. DLJ
used in its analyses various projections of future performance prepared by the
managements of EdgeMark and Old Kent. The projections are based on numerous
variables and assumptions which are inherently unpredictable and must be
considered not certain of occurrence as projected. Accordingly, actual results
could vary significantly from those assumed in the projections and any related
analyses. DLJ's opinion does not address the relative merits of the Merger as
compared to any alternative business strategies that might exist for EdgeMark
or the effect of any other business combination in which EdgeMark might engage.
In addition, as described above, DLJ's opinion to the EdgeMark board of
directors was one of many factors taken into consideration by the EdgeMark
board of directors in making its determination to approve the Plan of Merger.
Pursuant to the terms of a letter agreement, dated June 1, 1993 (the
"Engagement Letter"), for DLJ's services in connection with the Merger,
including the rendering of its opinions, EdgeMark (i) has paid DLJ $550,000 and
(ii) has agreed to pay DLJ an amount equal to 1.75% of the aggregate amount of
consideration received by the holders of EdgeMark Common Stock (treating any
shares issuable upon exercise of options, warrants or other rights of
conversion as outstanding), less the amount paid by EdgeMark pursuant to clause
(i) above. Because the major portion of the aggregate consideration to be
received by the holders of EdgeMark Common Stock is to be paid in the form of
securities, the Engagement Letter provides that the value of such securities,
for purposes of calculating the fee payable to DLJ, will be determined by the
last sale price for such securities on the last trading day thereof prior to
consummation of the Merger. Such fee shall be payable in cash upon consummation
of the Merger. EdgeMark has also agreed under the Engagement Letter to
reimburse DLJ for reasonable all out-of-pocket expenses, including
reasonable fees and expenses of legal counsel, and has agreed to indemnify DLJ
against certain expenses and liabilities incurred in connection with its
engagement, including liabilities under Federal securities law. The DLJ fee is
an obligation of EdgeMark, which is payable at closing, and will have no impact
on the consideration to be received by the holders of EdgeMark Common Stock.
DLJ may, in the ordinary course of its business, actively trade securities
of EdgeMark and Old Kent for its own account or for the accounts of customers
and thus may hold long or short positions in such securities at any time.
-24-
DLJ has from time to time in the past been, and may in the future be,
considered or employed by EdgeMark or Old Kent to provide investment banking
and securities brokerage services. These relationships are considered by
EdgeMark and Old Kent, respectively, to be in the ordinary course of business
and to be immaterial to DLJ's engagement relative to the Merger.
Conversion of EdgeMark Shares
Pursuant to the Plan of Merger, EdgeMark is soliciting proxies from
EdgeMark's stockholders for the purpose of adopting the Plan of Merger. The
affirmative vote of the holders of a majority of the outstanding shares of
EdgeMark Common Stock is required to adopt the Plan of Merger.
At the time the Merger becomes effective, EdgeMark will be merged with and
into OKFC Subsidiary. The surviving corporation will be OKFC Subsidiary and
will own all of the subsidiaries and other assets of EdgeMark. Upon
consummation of the Merger, all of the issued and outstanding capital stock of
the surviving corporation will be owned by Old Kent.
At the time the Merger becomes effective, each of the then issued and
outstanding shares of EdgeMark Common Stock will be converted into the number
of shares of Old Kent Common Stock equal to the "Conversion Ratio." The
Conversion Ratio will be equal to $42.79 (which is $62,000,000 divided by the
number of shares of EdgeMark Common Stock outstanding as of the date of the
Plan of Merger) divided by the "Old Kent Stock Price Per Share." The "Old Kent
Common Stock Price Per Share" is the weighted average of all transactions
reported for Old Kent Common Stock on the Bloomberg Financial Markets System,
or an equivalent system, for each of the last ten trading days preceding the
date of closing for which transactions are reported on that system (the
"Pricing Period"). Notwithstanding such weighted average, the Old Kent Stock
Price Per Share shall not be more than $35 per share nor less than $31 per
share.
The following table shows a range of hypothetical Old Kent Stock Prices
Per Share, and the Conversion Ratios corresponding to each Old Kent Stock Price
Per Share.
<TABLE>
<CAPTION>
Average Conversion
Price Ratio
<S> <C> <C>
At or Above $35.00 1.2226
34.00 1.2585
33.00 1.2967
32.00 1.3372
At or Below 31.00 1.3803
</TABLE>
The following table shows the closing sale price of Old Kent Common Stock
on the dates listed and the corresponding Conversion Ratios that would apply if
the closing sale price shown were the average price of Old Kent Common Stock
during the Pricing Period.
-25-
<TABLE>
<CAPTION>
Closing Conversion
Date Sale Price Ratio
<S> <C> <C> <C>
November 1, 1993 (1) 33.125 1.2918
December 31, 1993 29.875 1.3803
January 31, 1994 31.24 1.3748
February 23, 1994
<FN>
(1) The last trading day before public announcement of the Plan of Merger.
</TABLE>
The price of $42.79, which is divided by the Old Kent Stock Price Per Share to
yield the Conversion Ratio that determines the amount of Old Kent Common Stock
to be received by EdgeMark's stockholders, and the limits on the range of the
Conversion Ratio, were determined through the parties' negotiation of the Plan
of Merger (see "The Merger--Merger Recommendation and Reasons for the
Transaction"). These terms reflect EdgeMark and Old Kent's judgment as to the
value of the shares of EdgeMark Common Stock relative to the historical and
anticipated market price of Old Kent Common Stock.
The limits of the range of the Conversion Ratio (1.2226 and 1.3803) are
intended to limit the extent to which the amount of Old Kent Common Stock to be
received by EdgeMark's stockholders in the Merger is adjusted based on
extraordinary fluctuations in the market price of Old Kent Common Stock which
may be unrelated to Old Kent's financial condition or operations and therefore
should not cause adjustment of the Conversion Ratio beyond the limits of its
range. See "The Merger--Stock Price Condition" for a discussion of EdgeMark's
ability to avoid consummating the Merger in the event of an extraordinary
downward movement in the market price of Old Kent Common Stock which is not
matched by a group of comparable stocks.
The Conversion Ratio is subject to upward or downward adjustment upon the
occurrence of or the setting of a record date for certain events between the
date of the Plan of Merger and the effective time of the Merger which result in
or would result in changes in the number of shares of Old Kent Common Stock or
EdgeMark Common Stock outstanding, as the case may be. The purpose of any
adjustment to the Conversion Ratio would be to prevent dilution of the interests
of the respective shareholders of Old Kent and EdgeMark upon the occurrence of
certain events listed in the Plan of Merger. It is expected that none of these
events will occur and that no adjustment of the Conversion Ratio will be
necessary.
Old Kent will not issue fractional shares of its Common Stock in the Merger.
An EdgeMark stockholder who would otherwise be entitled to receive a fraction of
a share of Old Kent Common Stock in the Merger will receive instead an amount of
cash determined by multiplying that fraction by the Old Kent Stock Price Per
Share.
-26-
Before the effective time of the Merger, each outstanding stock option
entitling the holder to purchase EdgeMark Common Stock will be converted into
an option to acquire, for an equivalent price, the number of shares of Old Kent
Common Stock which would have been acquired if the options had been exercised
immediately prior to the Merger.
Shares of EdgeMark Common Stock as to which a legally sufficient demand
for appraisal has been made, and which are not voted in favor of the Merger,
will not be converted into shares of Old Kent Common Stock, but will represent
solely the right to receive payment of the appraised value of such shares in
accordance with Delaware law. (See "Appraisal Rights.")
Stock Price Condition
EdgeMark shall not be obligated to consummate the Merger at any time when
both of the following conditions exist: (i) the Old Kent Stock Price Per Share
is less than $28, subject to certain adjustments; and (ii) the percentage
determined by dividing the Old Kent Stock Price Per Share by $33 is more than
15 percentage points less than the percentage determined by dividing the sum of
the closing prices of a group of comparison stocks (as defined in the Plan of
Merger) on the last day of the Pricing Period by the sum of the closing prices
of these comparison stocks on October 29, 1993. The comparison stock used for
this purpose include the publicly based common stocks of a group of 15 regional
bank holding companies listed in the Plan of Merger.
The effect of this provision is that EdgeMark need not consummate the
Merger at a time when the price of Old Kent Common Stock has declined
substantially from the price prevailing when EdgeMark's board of directors
approved the Merger and that decline has been disproportionate to any decline
in the average price of the comparison stocks.
Distribution of Old Kent Common Stock
As of the effective time of the Merger, holders of EdgeMark Common Stock
outstanding immediately prior to the effective time of the Merger will cease to
be stockholders of EdgeMark and will have no rights as EdgeMark stockholders.
Certificates which represented shares of EdgeMark Common Stock outstanding
immediately prior to the effective time of the Merger ("Old Certificates") will
then represent shares of Old Kent Common Stock having all of the voting and
other rights of shares of Old Kent Common Stock, except for the right to
receive dividends pending surrender of the Old Certificates, and the right to
receive cash in lieu of fractional shares, all as provided in the Plan of
Merger. After the effective time of the Merger, Old Certificates will be ex-
changeable for new stock certificates representing the number of shares of Old
Kent Common Stock to which such holders will be entitled.
As soon as practicable and in any event not later than three business days
after the Merger becomes effective, Old Kent will send transmittal materials to
be used to exchange Old Certificates for stock certificates representing Old
-27-
Kent Common Stock. The transmittal materials will contain instructions with
respect to the surrender of Old Certificates.
As soon as practicable after the Merger becomes effective, Old Kent will
deliver the number of shares of Old Kent Common Stock issuable and the amount
of cash payable for fractional shares in the Merger to Old Kent Bank and Trust
Company, or such other bank or trust company as Old Kent may designate for such
purpose (the "Exchange Agent"). Old Kent and the Exchange Agent will appoint
either Old Kent Bank, Elmhurst, Illinois, or another bank with offices in
Chicago, as an agent for purposes of facilitating the physical exchange of Old
Certificates for new stock certificates.
As soon as practicable after the receipt of the proper transmittal
documents and Old Certificates from an EdgeMark stockholder, the Exchange Agent
will issue and deliver new stock certificates to the stockholder. The Exchange
Agent will issue and deliver certificates in the name and to the address
appearing on EdgeMark's stock records as of the effective time of the Merger,
or in such other name or to such other address as the holder of record may
specify in transmittal documents received by the Exchange Agent. The Exchange
Agent is not required to issue and deliver certificates to a stockholder until
it has received all of the Old Certificates held of record by that stockholder,
or an affidavit of loss and indemnity bond for such certificate or certificates,
together with properly executed transmittal materials. Such Old
Certificates, transmittal materials and affidavits must be in a form and
condition reasonably acceptable to the Exchange Agent.
The Exchange Agent will have reasonable discretion to determine the rules
and procedures relating to the issuance and delivery of certificates of Old
Kent Common Stock into which shares of EdgeMark Common Stock are converted in
the Merger and governing the payment for fractional shares.
The declaration of a dividend on Old Kent Common Stock payable to
shareholders of record of Old Kent as of a record date at or after the
effective time of the Merger will include dividends on all shares issuable
under the Plan of Merger. However, no former stockholder of EdgeMark will be
entitled to receive a distribution of such dividends until physical exchange of
that stockholder's Old Certificates shall have been effected. Upon physical
exchange of that stockholder's Old Certificates, he or she will be entitled to
receive from Old Kent an amount equal to all such dividends (without interest
and less the amount of taxes, if any, which may have been imposed or paid)
declared and paid with respect to those shares.
After the effective time of the Merger, Old Kent and EdgeMark will not
transfer on the stock transfer books of EdgeMark any shares of EdgeMark Common
Stock which were issued and outstanding immediately prior to the effective time
of the Merger. If, after the effective time of the Merger, a stockholder
properly presents Old Certificates to Old Kent, Old Kent will cancel and
exchange the Old Certificates for stock certificates representing shares of Old
Kent Common Stock as provided in the Plan of Merger. After the effective time
of the Merger, ownership of shares represented by Old Certificates may be
transferred only on the stock transfer records of Old Kent.
-28-
Effective Date of the Merger
The Merger shall be consummated at the close of business on the date
specified in a Certificate of Merger filed in accordance with the Delaware
General Corporation Law. If the stockholders of EdgeMark adopt the Plan of
Merger at the special meeting of EdgeMark stockholders, and the other
conditions to the Merger set forth in the Plan of Merger and summarized under
"The Merger--Conditions to the Merger and Abandonment" herein are satisfied,
the effective time of the Merger is anticipated to be during the second quarter
of 1994, provided that the Plan of Merger has not been terminated prior to such
date. The Merger may not be consummated until receipt of approval from the
Federal Reserve Board or its delegate and expiration of the required 30-day
waiting period following such approval, and until receipt of approvals from the
Illinois Commissioner of Banks and Trust Companies (the "Illinois Commissioner")
and the Commissioner of Financial Institutions Bureau, Michigan
Department of Commerce (the "Michigan Commissioner"). An application for prior
approval of the Merger was submitted to the Federal Reserve Board on
January 19, 1994. Applications for approval of the Merger have also been
submitted to the Illinois Commissioner and the Michigan Commissioner. Although
such approvals are anticipated, there can be no assurance when or if such
approvals will be granted, or when or if any other condition to the Merger will
be satisfied.
Business of EdgeMark Pending the Merger
The Plan of Merger also contains covenants to which EdgeMark has agreed.
The covenants remain in effect until the effective time of the Merger or until
the Plan of Merger has been terminated, and include, among others, an agreement
that EdgeMark and each of its subsidiaries: (i) will conduct its business and
manage its property only in the usual, regular and ordinary course; (ii) will
not enter into any employment agreement which is not terminable, without cost
or penalty, on 60 days' notice; (iii) will not issue any capital stock or any
security convertible into capital stock, or grant any warrant or option to
acquire capital stock, or otherwise alter its capital structure, other than as
required by outstanding EdgeMark stock options; (iv) will not make any material
changes in any policies or procedures applicable to the conduct of its
business; and (v) will not sell, mortgage, pledge, encumber or otherwise
dispose of any property or assets, except in the ordinary course of business.
Nothing contained in the Plan of Merger shall preclude EdgeMark from declaring
and paying semiannual cash dividends on its Common Stock of $.10 per share in
June and $.15 per share in December, nor preclude EdgeMark or any of its
subsidiaries from making ordinary hiring and personnel decisions or from making
ordinary and regular adjustments in the compensation of persons employed by it
(provided such adjustments are reasonable in amount and consistent with the
prior year and are made after first consulting with Old Kent), nor preclude any
subsidiary of EdgeMark from declaring and paying dividends to EdgeMark. The
board of directors of EdgeMark is under no obligation to pay dividends on
EdgeMark Common Stock.
-29-
EdgeMark Stock Options
It is contemplated that each stock option entitling the holder to purchase
EdgeMark Common Stock which shall be outstanding at the effective time of the
Merger, shall be converted into an option to purchase that number of shares of
Old Kent Common Stock which such holder would have been entitled to receive
pursuant to the Merger had such holder exercised such option immediately prior
to the effective time of the Merger, and the option price shall be
proportionately adjusted.
As of February 17, 1994, there were options outstanding to purchase an
aggregate of 117,802 shares of EdgeMark Common Stock.
Management After the Merger
Upon the consummation of the Merger, the directors and officers of OKFC
Subsidiary will be the persons who were directors and officers of OKFC
Subsidiary immediately prior to the effective time of the Merger.
Old Kent has agreed that after the effective time of the Merger, OKFC
Subsidiary shall cause two persons, to be selected by OKFC Subsidiary from
those who presently serve on EdgeMark's board of directors, to be elected or
appointed to the board of directors of Old Kent Bank, Elmhurst, Illinois. Such
directors shall, after their initial election or appointment, be subject to re-
election at the discretion of the stockholders of OKFC Subsidiary on the same
basis as other directors. It is expected that Charles Bruning will be appointed
Vice Chairman and a Director of Old Kent after the Merger.
The directors, officers and employees of EdgeMark's subsidiaries will
continue immediately after the effective time of the Merger as directors, offi-
cers and employees of the same subsidiaries.
Conditions to the Merger and Abandonment
The obligations of Old Kent and EdgeMark to consummate the Merger are
subject to the fulfillment of certain conditions, including, but not limited
to, the following:
1. An affirmative vote of holders of a majority of the outstanding
shares of EdgeMark Common Stock is required to adopt the Plan of Merger.
2. The Board of Governors of the Federal Reserve System, the Illinois
Commissioner and the Michigan Commissioner must each approve the Merger.
3. Old Kent and EdgeMark must comply with their respective covenants, and their
respective representations and warranties must be true in
all material respects each as set forth in the Plan of Merger. (See "Business
of EdgeMark Pending the Merger.")
4. Old Kent and EdgeMark must receive certain opinions of counsel.
-30-
5. EdgeMark must obtain waivers of all rights which would be triggered by the
change in control of EdgeMark resulting from the Merger, other
than rights with respect to adjustment of the rate of dividends payable on
EdgeMark's Preferred Stock as provided in the Certificate of Designation of
Rights and Preferences.
6. There must not be any suit or proceeding pending or threatened which may
result in material liability to EdgeMark or its subsidiaries on a consolidated
basis or which challenges the Merger.
Either Old Kent or EdgeMark, whichever is entitled to the benefit of the
foregoing conditions, may waive one or more of those conditions except where
satisfaction of the condition is required by law. The Plan of Merger contains
various other conditions to the respective obligations of Old Kent and EdgeMark
which have been satisfied.
The boards of directors, or duly authorized committees thereof, of
EdgeMark and Old Kent may by mutual consent terminate the Plan of Merger and
abandon the Merger at any time prior to the effective time of the Merger.
Either EdgeMark or Old Kent may terminate the Plan of Merger and abandon
the Merger on its own action upon the occurrence of certain events specified in
the Plan of Merger, including, among others, the following events:
1. Old Kent or EdgeMark discovers that one or more of the other party's
representations and warranties is or has become untrue, and the cumulative
effect of all such untrue representations and warranties is material to the
other party's business, income or financial condition on a consolidated basis;
2. Old Kent or EdgeMark commits one or more breaches of any provision of the
Plan of Merger which would in the aggregate be material on a consolidated basis;
3. There occurs a materially adverse change in the financial condition of Old
Kent or EdgeMark and their respective subsidiaries on a consolidated basis;
4. The Merger is not effective on or before September 30, 1994;
5. A court of competent jurisdiction issues a final unappealable injunction or
other judgment restraining or prohibiting consummation of the Merger;
6. The stockholders of EdgeMark fail to adopt the Plan of Merger at the special
meeting;
7. The Board of Governors of the Federal Reserve System, the Illinois
Commissioner or Michigan Commissioner refuses to approve the Merger;
Old Kent may terminate the Plan of Merger and abandon the Merger if an
environmental assessment indicates any environmental conditions which are
contrary to EdgeMark's representations and warranties, and the parties are
unable to agree on a course of action for further investigation of the
environmental condition and/or mutually acceptable modification to the Plan of
Merger, and the environmental condition is not one for which it can be
-31-
determined to be a reasonable degree of certainty that the risk and expense to
which Old Kent would be subject as the owner of the property can be quantified
or limited to an immaterial amount.
Old Kent may terminate the Plan of Merger and abandon the Merger at any
time more than 30 days after the execution of the Plan of Merger if either
(i) the holders of EdgeMark's short-term notes, or (ii) the holders of EdgeMark
Preferred Stock have not then provided assurances, reasonably acceptable to Old
Kent, that they will approve the Merger or have conditioned that approval in a
manner unacceptable to Old Kent.
Old Kent may terminate the Plan of Merger and abandon the Merger if
EdgeMark or its subsidiaries, or any of their directors, officers, employees,
investment bankers, representatives, or agents negotiates, solicits, invites,
or discusses with any party other than Old Kent 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 EdgeMark or any
of its subsidiaries.
Termination Fee
Under certain circumstances involving the acquisition of control of
EdgeMark by a party other than Old Kent, EdgeMark is required under the Plan of
Merger to pay Old Kent a "Termination Fee." The Termination Fee is payable
only if, while the Plan of Merger is in effect, (i) a party other than Old Kent
directly or indirectly acquires control (as defined in the Federal Bank Holding
Company Act, substituting 50 percent for 25 percent) of EdgeMark, or acquires
50 percent or more of the consolidated assets of EdgeMark and EdgeMark's
subsidiaries, or (ii) EdgeMark solicits, invites, negotiates, discusses, or
enters into an agreement with a party other than Old Kent to acquire such
control or such assets or publicly announces an intention to do so, and within
one year of the date of such solicitation, invitation, negotiation, discussion,
agreement, or announcement (whether or not this Plan of Merger is then in
effect) the party acquires such control or such assets.
The Termination Fee would be the greater of (i) $1,000,000; or (ii) 15
percent of the excess of the "Acquisition Price" of EdgeMark Common Stock over
the "Old Kent Merger Price," multiplied by the number of shares of EdgeMark
Common Stock outstanding immediately prior to the acquisition of control of
EdgeMark. For purposes of the Termination Fee, "Acquisition Price" is
generally the value of the consideration received by EdgeMark stockholders from
the party acquiring control of EdgeMark, and "Old Kent Merger Price" is defined
as $42.79, subject to certain adjustments.
Old Kent will not be entitled to receive the Termination Fee if the
Plan of Merger is terminated and the Merger is abandoned by EdgeMark by reason
of a breach of Old Kent's warranties or covenants, an injunction prohibiting
consummation of the Merger, a refusal by any regulatory authority to approve
the Merger, the occurrence of a materially adverse change in the financial
condition of Old Kent, or the discovery of an environmental condition which is
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contrary to EdgeMark's representations and warranties and for which the parties
are unable to agree on a course of further investigation and/or a mutually
acceptable modification to the Plan of Merger. In addition, Old Kent will not
be entitled to receive the Termination Fee if the Plan of Merger is terminated
and the Merger is abandoned by EdgeMark because the Merger has not yet become
effective on September 30, 1994, if Old Kent has failed to satisfy certain
conditions precedent to EdgeMark's obligations under the Plan of Merger, or if
the Plan of Merger is terminated and the Merger is abandoned by mutual consent
of the parties.
Description of Old Kent Capital Stock
Old Kent's authorized capital stock consists of 175,000,000 shares of
common stock, $1 par value ("Common Stock"), and 25,000,000 shares of preferred
stock, no par value ("Preferred Stock"). As of October 31, 1993, Old Kent had
outstanding 40,530,990 shares of Common Stock and no shares of Preferred Stock.
Old Kent expects to issue no more than 2,181,000 shares of Common Stock in the
Merger.
Common Stock. Holders of Old Kent Common Stock are entitled to dividends
out of funds legally available for that purpose when, as and if declared by the
board of directors. The dividend rights of Old Kent Common Stock are subject
to the rights of Old Kent Preferred Stock which has been or may be issued.
Each holder of Old Kent Common Stock is entitled to one vote for each share
held. Old Kent Common Stock has no preemptive rights, cumulative voting
rights, conversion rights or redemption provisions.
In the case of any liquidation, dissolution or winding up of the affairs
of Old Kent, holders of Old Kent Common Stock will be entitled to receive, pro
rata, any assets distributable to common shareholders in respect to the number
of shares held by them. The liquidation rights of Old Kent Common Stock are
subject to the rights of holders of Old Kent Preferred Stock which has been or
may be issued.
All outstanding shares of Old Kent Common Stock are, and shares to be
issued pursuant to the Plan of Merger will be when issued, fully paid and
nonassessable.
Preferred Stock. Old Kent is authorized to issue shares of Preferred
Stock from time to time in one or more series. Preferred Stock may have such
designations, powers, preferences and relative participating, optional or other
rights and such qualifications, limitations or restrictions as may be provided
for the issue of such series by resolution adopted by the Old Kent board of
directors. Such Preferred Stock may have priority over Old Kent Common Stock
as to dividends and as to distribution of Old Kent's assets upon any
liquidation, dissolution or winding up of Old Kent. Such Preferred Stock may
be redeemable for cash, property or rights of Old Kent, may be convertible into
shares of Old Kent Common Stock, and may have voting rights entitling the
holder to not more than one vote per share.
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Provisions Affecting Control
The Michigan Business Corporation Act and Old Kent's shareholder rights
plan contain provisions that could be utilized to impede efforts to acquire
control of Old Kent.
Shareholder Rights Plan. The Board of Directors of Old Kent has adopted a
shareholder rights plan. This plan is designed to protect the shareholders of
Old Kent against unsolicited attempts to acquire control of Old Kent in a
manner that does not offer a fair price to all of the shareholders. Under this
plan two-thirds of a "Right" is associated with each outstanding share of Old
Kent Common Stock. Each full Right entitles a shareholder of Old Kent to
purchase one one-hundredth of a share of Series B Preferred Stock from Old Kent
at a price of $80. The Rights become exercisable if a person or group (an
"Acquiring Person") has acquired, or has obtained the right to acquire, 20
percent or more of the outstanding shares of Old Kent Common Stock or has
commenced a tender offer or exchange offer that would result in the Acquiring
Person owning 25 percent or more of the outstanding shares of Old Kent Common
Stock. If Old Kent were the surviving corporation in a merger with an Acquiring
Person and Old Kent Common Stock is not changed or exchanged, an Acquiring
Person were to become the beneficial owner of more than 25 percent of the
outstanding shares of Old Kent Common Stock, or an Acquiring Person were to
engage in one or more "self-dealing' transactions deemed to be unfair to Old
Kent, each holder of a Right would have the right to receive, upon exercise, Old
Kent Common Stock having a value equal to two times the exercise price of the
Right. In addition, after an Acquiring Person has acquired, or obtained the
right to acquire, 20 percent or more of the outstanding shares of Old Kent
Common Stock and the Acquiring Person causes Old Kent to merge into the
Acquiring Person or causes 50 percent or more of Old Kent's assets to be sold or
transferred, each holder of a Right would have the right to receive, upon
exercise, common stock of the Acquiring Person having a value equal to two times
the exercise price of the Right. Old Kent is entitled to redeem the Rights at
$.01 per Right at any time until ten days following the public announcement that
an Acquiring Person has acquired, or has obtained the right to acquire, 20
percent or more of the outstanding shares of Old Kent Common Stock.
Michigan Fair Price Act. Certain provisions of the Michigan Business
Corporation Act (the "Fair Price Act") establish a statutory scheme similar to
the supermajority and fair price provisions found in many corporate charters.
The Fair Price Act provides that a supermajority vote of 90 percent of the
shareholders and no less than two-thirds of the votes of noninterested share-
holders must approve a "business combination." The Fair Price Act defines a
"business combination" to encompass any merger, consolidation, share exchange,
sale of assets, stock issue, liquidation, or reclassification of securities
involving an "interested shareholder" or certain "affiliates." An "interested
shareholder" is generally any person who owns 10 percent or more of the
outstanding voting shares of the corporation. An "affiliate" is a person who
directly or indirectly controls, is controlled by, or is under common control
with a specified person.
The supermajority vote required by the Fair Price Act does not apply to
business combinations that satisfy certain conditions. These conditions
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include, among others, that (1) the purchase price to be paid for the shares of
the corporation in the business combination is at least equal to the highest of
either (a) the market value of the shares or (b) the highest per share price
paid by the interested shareholder within the preceding two-year period or in
the transaction in which the shareholder became an interested shareholder,
whichever is higher; and (2) once becoming an interested shareholder, the person
does not become the beneficial owner of any additional shares of the corporation
except as part of the transaction which resulted in the interested shareholder
becoming an interested shareholder or by virtue of proportionate stock splits or
stock dividends.
The requirements of the Fair Price Act do not apply to business combinations
with the interested shareholder that the board of directors has approved or
exempted from the requirements of the Fair Price Act by resolution prior to the
time that the interested shareholder first became an interested shareholder.
Control Share Act. Michigan law regulates the acquisition of "control
shares" of large public Michigan corporations (the "Control Share Act"). The
Control Share Act applies to Old Kent and its shareholders.
The Control Share Act establishes procedures governing "control share
acquisitions." A control share acquisition is defined as an acquisition of
shares by an acquirer which, when combined with other shares held by that
person or entity, would give the acquirer voting power at or above any of the
following thresholds: 20 percent, 33-1/3 percent or 50 percent. Under the
Control Share Act, an acquirer may not vote "control shares" unless the
corporation's disinterested shareholders (defined to exclude the acquiring
person, officers of the target corporation, and directors of the target
corporation who are also employees of the corporation) vote to confer voting
rights on the control shares. The Control Share Act does not affect the voting
rights of shares owned by an acquiring person prior to the control share
acquisition.
The Control Share Act entitles corporations to redeem control shares from
the acquiring person under certain circumstances. In other cases, the Control
Share Act confers dissenters' right upon all of a corporation's shareholders
except the acquiring person.
Comparison of Rights of Old Kent Shareholders and
EdgeMark Stockholders
Old Kent is a Michigan corporation. If the Merger is consummated, the
present stockholders of EdgeMark will become shareholders of Old Kent.
EdgeMark is a Delaware corporation. The Michigan Business Corporation Act is
similar to the Delaware General Corporation Law. However, there are a number
of differences between the two laws.
Appraisal Rights. Under both Michigan and Delaware law, a holder of
shares of stock who does not vote in favor of certain corporate actions may
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have the right to obtain an appraisal of those shares in certain circumstances,
and the right to receive cash in exchange for those shares (called appraisal
rights or rights of dissent).
The Michigan Business Corporation Act recognizes rights of dissent in
connection with certain amendments to the articles of incorporation, mergers,
consolidations, sales or other dispositions of all or substantially all of the
assets of a corporation, certain acquisitions for stock, and approval of a
control share acquisition. Under Delaware law, appraisal rights are available
for the shares of any stock of a constituent corporation in certain mergers.
Unless the corporate charter otherwise provides, appraisal rights are not
available under Delaware law as a result of an amendment to a corporation's
certificate of incorporation or the sale of all or substantially all of the
assets of the corporation.
Under Delaware law, appraisal rights are available for the shares of any
stock which, at the record date fixed to determine the stockholders entitled to
receive notice of and to vote at the meeting of stockholders to act upon the
agreement of merger or consolidation, was held of record by fewer than 2,000
stockholders. Because EdgeMark Common Stock is held of record by fewer than
2,000 stockholders, appraisal rights would generally be available to such
stockholders.
Under Michigan law, rights of dissent are not available in connection with
mergers, consolidations or sales of assets of a corporation the shares of which
are held of record by not less than 2,000 persons on the record date fixed to
determine the shareholders entitled to vote on the merger or consolidation.
Because shares of stock of Old Kent are held by more than 2,000 persons,
holders of Old Kent stock have no such general rights of dissent. However, Old
Kent's Articles of Incorporation provide that any Old Kent shareholder may
dissent from any plan of merger or consolidation to which Old Kent is a party
or any sale, lease, exchange, or other disposition of all or substantially all
of the assets of Old Kent not in the usual or regular course of business, in
the manner, with the rights, and subject to the requirements applicable to
dissenting shareholders as provided in the Michigan Corporation Act, without
regard to the exception to a shareholder's right to dissent provided in
Section 761(1) of the Act. This right of dissent does not apply to any
corporate action that is approved by (i) an affirmative vote of at least fifty
percent (50%) of the entire board of directors of Old Kent, and (ii) an
affirmative vote of fifty percent (50%) of the Continuing Directors.
"Continuing Director" means a member of the board of directors of Old Kent who
was either (i) first elected or appointed as a director prior to April 17,
1989, or (ii) subsequently elected or appointed as a director if such director
was nominated or appointed by a majority of the then Continuing Directors.
Limitation of Director Liability. The Michigan Business Corporation Act
and the Delaware General Corporation Law both permit corporations to limit the
personal liability of their directors in certain circumstances. Old Kent's
Articles of Incorporation and EdgeMark's Certificate of Incorporation both
provide that directors of the respective corporation shall not be liable to the
corporation or its shareholders for monetary damages for breaches of fiduciary
duty, except to the extent that such a limitation of liability contravenes the
-36-
respective state's law. These provisions eliminate the personal liability of
directors of Old Kent and EdgeMark in their capacity as directors (but not in
their capacity as officers) to the respective corporation and its shareholders
to the full extent permitted by Michigan or Delaware law, as the case may be.
Shareholder Action by Written Consent. Under Delaware law, unless the
corporate charter otherwise provides, an action required by law to be taken at
an annual or special meeting of the stockholders may be taken without a
meeting, without prior notice and without a vote, if the holders of outstanding
shares having the minimum number of votes that would be necessary to take the
action at a meeting have consented in writing to the action. Under Michigan
law, shareholders must unanimously consent in writing to action taken without a
meeting, unless the articles of incorporation provide that the action may be
taken with the written consent of holders of the minimum number of votes that
would be necessary to authorize the action at a meeting. The articles of
incorporation of Old Kent reflect Michigan law and do not authorize shareholder
action without a meeting by less than unanimous written consent.
Evaluation of Proposed Offers. Old Kent's Articles of Incorporation
provide that Old Kent's board of directors will not approve, adopt, or
recommend any proposal of any party other than Old Kent to make a tender or
exchange offer for any equity security of Old Kent, or engage in any merger or
consolidation of Old Kent with or into another entity, any sale, exchange,
lease, mortgage, pledge, transfer, or other disposition of all or substantially
all of Old Kent's assets, any liquidation or dissolution of Old Kent, or any
reorganization or recapitalization of Old Kent which would result in a change
of control of Old Kent, unless it has first evaluated the proposal and
determined, in its judgment, that the proposal would be in substantial
compliance with all applicable laws. If Old Kent's board of directors
determines, in its judgment, that a proposal would be in substantial compliance
with all laws, the board of directors will then evaluate the proposal and
determine whether the proposal is in the best interests of Old Kent and its
shareholders. In evaluating a proposed offer to determine whether it would be
in the best interests of the corporation and its shareholders, the board of
directors, in exercising its judgment, may consider all facts which it deems
relevant including, without limitation: (i) the fairness of the consideration
to be received by its shareholders under the proposed offer; (ii) the possible
economic and social impact of the proposed offer and its consummation on Old
Kent and its subsidiaries and their employees, customers, and depositors;
(iii) the possible economic and social impact of the proposed offer and its
consummation on the communities in which Old Kent and its subsidiaries operate
or are located; (iv) the business, financial condition, safety, soundness, and
earning prospects of the offering party; (v) the competence, experience, and
integrity of the offering party and its management; and (vi) the intentions of
the offering party regarding the use of the assets of Old Kent to finance the
transaction.
Supermajority Voting. Edgemark's Certificate of Incorporation requires
the affirmation vote of the holders of 75% of the voting stock of EdgeMark for
approval of certain business combinations. This requirement does not apply to
transactions which have been approved by two-thirds of EdgeMark's directors.
Because the Merger has been approved by two-thirds of EdgeMark's directors, the
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normal requirements of Delaware law apply, and, accordingly, only a majority
vote of the stockholders is required.
Agreements of Affiliates
The shares of Old Kent Common Stock to be issued to EdgeMark stockholders
pursuant to the Plan of Merger have been registered under the Securities Act of
1933. That registration, however, does not cover resales by EdgeMark
stockholders who may be deemed to control or be controlled by, or be under
common control with, EdgeMark at the time of the annual meeting of stockholders
("Affiliates").
Each director and executive officer of EdgeMark, all of whom have been
identified by EdgeMark as Affiliates of EdgeMark, has agreed that he or she
will not sell, transfer or otherwise dispose of shares of Old Kent Common Stock
received in the Merger in a manner which would result in violation of the
Securities Act of 1933 or applicable rules and regulations. Old Kent may place
a legend reflecting such transfer restrictions on the certificates representing
such shares of Old Kent Common Stock.
Certain of EdgeMark's Affiliates have also agreed that they will cause
their personal shares of EdgeMark stock to be voted in favor of adoption of the
Plan of Merger.
Federal Income Tax Consequences
As a condition precedent to the Merger, Old Kent and EdgeMark must receive
opinions of Old Kent's legal counsel substantially to the effect that (among
other issues) for federal income tax purposes:
1. No gain or loss will be recognized by the stockholders of
EdgeMark who receive shares of Old Kent Common Stock in exchange for all of
their shares of EdgeMark Common Stock, except to the extent of any cash
received in lieu of a fractional share of Old Kent Common Stock;
2. The basis of Old Kent Common Stock to be received by
stockholders of EdgeMark will, in each instance, be the same as the basis of
the shares of EdgeMark Common Stock surrendered in exchange therefore; and
3. The holding period of the Old Kent Common Stock received by
stockholders of EdgeMark will, in each instance, include the holding period of
the respective shares of EdgeMark Common Stock surrendered in exchange
therefore; provided, that the EdgeMark Common Stock was, in each instance, held
as a capital asset in the hands of the stockholder of EdgeMark at the effective
time of the Merger.
4. No income will be recognized by the holders of EdgeMark's outstanding stock
options by reason of the amendment of the terms of these stock options as
contemplated by the Plan of Merger.
-38-
EACH STOCKHOLDER OF EDGEMARK SHOULD CONSULT A PROFESSIONAL TAX ADVISER ON
THE TAX CONSEQUENCES OF THE CONSOLIDATION TO SUCH STOCKHOLDER. THE TAX AND
OTHER MATTERS DESCRIBED IN THIS PROSPECTUS AND PROXY STATEMENT DO NOT
CONSTITUTE LEGAL OR TAX ADVICE.
-39-
APPRAISAL RIGHTS
If the Merger is consummated, holders of EdgeMark Common Stock in respect
of which appraisal rights have been perfected and not withdrawn or otherwise
lost will be entitled to have the "fair value" of their shares at the effective
time of the Merger (exclusive of any element of value arising from the
accomplishment or expectation of the Merger) judicially determined and paid to
them in cash by complying with the provisions of Section 262 of the Delaware
General Corporation Law.
The following is a summary of Section 262 and the procedures for dissenting
from the Merger and demanding statutory appraisal rights. This
summary is qualified in its entirety by reference to Section 262, which is
reprinted in full as Appendix E to this Prospectus and Proxy Statement.
Appendix E should be reviewed carefully by any holder who wishes to exercise
statutory appraisal rights or who wishes to preserve the right to do so, since
failure to comply with the procedures set forth in Section 262 will result in
the loss of appraisal rights.
All references in Section 262 and in this summary to a "stockholder" are
to the record holder of the shares of EdgeMark Common Stock as to which
appraisal rights are asserted. A person having a beneficial interest in shares
of EdgeMark Common Stock that are held of record in the name of another person,
such as a broker or nominee, is responsible for ensuring that the demand for
appraisal is made by the record holder.
Stockholders of record who desire to exercise their appraisal rights must
satisfy all of the following conditions. A written demand for appraisal of
shares of EdgeMark Common Stock must be delivered to EdgeMark before the taking
of the vote on the Plan of Merger. This written demand for appraisal of shares
must be in addition to and separate from any proxy given or vote cast in
connection with the special meeting called to consider the Merger. Voting
against, abstaining from voting or failing to vote on the Plan of Merger will
not constitute a demand for appraisal within the meaning of Section 262.
Stockholders electing to exercise their appraisal rights under Section 262
must not vote for adoption of the Plan of Merger, but a vote against adoption
of the Plan of Merger is not required in order for that stockholder to exercise
appraisal rights. If a stockholder returns a signed proxy but does not specify
a vote against adoption of the Plan of Merger or a direction to abstain, the
proxy will be voted for adoption of the Plan of Merger, which will have the
effect of waiving that stockholder's appraisal rights.
A demand for appraisal must be executed by or for the stockholder of
record, exactly as such stockholder's name appears on the certificate or
certificates representing shares of EdgeMark Common Stock. If the EdgeMark
Common Stock is owned of record in a fiduciary capacity, such as by a trustee,
guardian, or custodian, such demand must be executed by the fiduciary. If the
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EdgeMark Common Stock is owned of record by more than one person, as in a joint
tenancy or tenancy in common, such demand must be executed by all joint owners.
A record owner, such as a broker, who holds EdgeMark Common Stock as a nominee
for others, may exercise appraisal rights with respect to the shares held for
all or less than all beneficial owners of shares as to which such person is the
record owner.
A stockholder who elects to exercise appraisal rights may mail or
deliver his or her written demand to: Charles A. Bruning, President, EdgeMark
Financial Corporation, Merchandise Mart Plaza, Chicago, Illinois 60654. The
written demand for appraisal should comply with the preceding paragraphs and
should specify the stockholder's name and mailing address, the number of shares
of EdgeMark Common Stock owned, and that the stockholder is thereby demanding
appraisal of his or her shares. It is the responsibility of each stockholder
electing appraisal rights to ensure that the written demand is received by
EdgeMark before the taking of the vote on the Plan of Merger at the special
meeting of EdgeMark's stockholders.
Within ten days after the effective time of the Merger, OKFC Subsidiary,
as the corporation into which EdgeMark is to be merged, must provide notice of
the effective time of the Merger to all stockholders who have complied with
Section 262 and have not voted for adoption of the Plan of Merger.
Within 120 days after the effective time of the Merger, either OKFC
Subsidiary or any stockholder of EdgeMark who has complied with the required
conditions of Section 262 may file a petition in the Delaware Court of Chancery
demanding a determination of the fair value of the shares of all of the
dissenting stockholders. If a petition for an appraisal is filed in a timely
manner, after a hearing on such petition, the court will determine which
stockholders are entitled to appraisal rights and will appraise the shares of
EdgeMark Common Stock owned by such stockholders determining the fair value of
such shares, exclusive of any element of value arising from the accomplishment
or expectation of the Merger, together with a fair rate of interest (simple or
compound as the court may direct) to be paid, if any, upon the amount
determined to the fair value.
Stockholders considering seeking appraisal should keep in mind that the
fair value of their shares determined under Section 262 could be more than, the
same as or less than the consideration they are to receive pursuant to the Plan
of Merger if they do not seek appraisal of their shares. The cost of the
appraisal proceeding may be determined by the Delaware Court of Chancery and
taxed against the parties as the court deems equitable in the circumstances.
Upon application of a dissenting stockholder, the court may order that all or a
portion of the expenses incurred by a dissenting stockholder in connection with
the appraisal proceeding, including without limitation reasonable attorneys'
fees and the fees and expenses of experts, be charged pro rata against the
value of all shares of EdgeMark Common Stock entitled to appraisal. In the
absence of such a determination or assessment, each party will bear their own
expenses.
Any stockholder who has duly demanded appraisal in compliance with
Section 262 will not, after the effective time of the Merger, be entitled to
-41-
vote for any purpose the shares of EdgeMark Common Stock subject to such demand
or to receive payment of dividends or other distribution on such shares, except
for dividends or distributions payable to stockholders of record at a date
prior to the effective time of the Merger.
The provisions of Section 262 are technical in nature and complex.
EdgeMark stockholders desiring to exercise appraisal rights should consult
counsel, since the failure to comply strictly with the provisions of
Section 262 may defeat their appraisal rights.
VOTING AND MANAGEMENT INFORMATION
Voting Securities and Principal Stockholders of EdgeMark
Holders of record of shares of EdgeMark Common Stock at the close of
business on February 17, 1994, will be entitled to vote at the annual meeting.
As of February 17, 1994, there were 1,461,939 shares of EdgeMark Common
Stock outstanding. Each share of EdgeMark Common Stock is entitled to one
vote.
The following table sets forth information concerning the number of shares
of EdgeMark Common Stock held by each stockholder who is known to EdgeMark's
management to be the beneficial owner of more than five percent of the
outstanding shares as of December 31, 1993:
<TABLE>
<CAPTION>
Old Kent Common
Amount and Nature Beneficial Stock to be Received
Ownership of EdgeMark Common Stock (1) in the Merger
Shared
Sole Voting Voting or Total Percent
Name and Address of and Invest- Investment Trustee/ Stock Percent Following of
Beneficial Owner ment Power Power(2) Shared Options Total of Class Merger(3) Class(4)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Norm & Co.
c/o Harris Trust & Savings Bank
111 West Monroe Street
P.O. Box 755
Chicago, Illinois 60690 197,357 -0- -0- -0- 197,357 13.62% 255,912 *
Charles A. Bruning
c/o EdgeMark Financial Corporation
Merchandise Mart Plaza, Suite 2410
Chicago, Illinois 60654 42,902 -0- 29,539(3) 90,802 163,243 10.5 211,677 *
</TABLE>
The following table sets forth certain information concerning the number
of shares of EdgeMark Common Stock held as of December 31, 1993, by each of
EdgeMark's directors and by all of EdgeMark's directors and executive officers
as a group:
-42-
<TABLE>
<CAPTION> Old Kent Common
Amount and Nature Beneficial Stock to be Received
Ownership of EdgeMark Common Stock (1) in the Merger
Shared
Sole Voting Voting or Total Percent
and Invest- Investment Trustee/ Stock Percent Following of
Name of Beneficial Owner ment Power Power(2) Shared (3) Options Total of Class Merger(4) Class(5)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Roger A. Anderson 22,524 9,233.78 - 0 - - 0 - 31,757.78 2.17% 41,180 *
Stephen J. Bloom 19,793 - 0 - - 0 - - 0 - 19,793 1.36 25,665 *
Charles A. Bruning 42,902 - 0 - 29,539 90,802 163,243 10.50 211,677 *
Jerry J. Glashagel 26,957 - 0 - - 0 - - 0 - 26,957 1.85 34,955 *
Wayne L. Haraldson 21,461 9,748 - 0 - - 0 - 31,209 2.14 40,468 *
Derek N. G. Metcalf 47,738.87 7,335.62 29,539 - 0 - 84,613.49 5.80 109,718 *
William H. Pokorny, Sr. 6,316.75 4,058.36 29,539 - 0 - 39,914.11 2.74 51,756 *
Eugene J. Wozniak, Sr. 15,123.43 10,874 - 0 - - 0 - 25,997.43 1.80 33,710 *
All Directors and Executive
Officers as a group (16 persons) 231,618.92 41,579.76 29,539 114,802 417,539.68 26.55% 541,423 1.34%
<FN>
__________________________
* Less than 1%.
(1) The numbers of shares stated are based on information furnished by the persons listed and include shares personally owned of
record by each person and shares which under applicable regulations are deemed to be otherwise beneficially owned by each person.
Under these regulations, a beneficial owner of a security includes any person who, directly or indirectly, through any contract,
arrangement, understanding, relationship or otherwise has or shares voting power or investment power with respect to the security.
Voting power includes the power to vote or to direct the voting of the security. Investment power includes the power to dispose
or to direct the disposition of the security. A person will also be considered the beneficial owner of a security if the person
has a right to acquire beneficial ownership of the security within 60 days.
(2) These numbers include shares as to which the indicated person or entity is legally entitled to share voting or investment
power by reason of joint ownership, trust or other contract or property right, and shares held by spouses and children over whom
the indicated person may have substantial influence by reason of relationship. In some instances the indicated person disclaims
beneficial ownership of these shares. Shares held in fiduciary capacities by bank subsidiaries of EdgeMark are not included.
(3) This amount 29,539 represents shares held in the EdgeMark Employee Benefit & Income Plan, which Messrs. Bruning, Metcalf and
Pokorny serve as co-trustees with other individuals. Except 909 shares held for the benefit of Bruning, Bruning disclaims
beneficial ownership of these shares.
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(4) Based on an assumed Conversion Ratio of 1.2967 shares of Old Kent Common Stock for each share of EdgeMark Common Stock. (See
"Comparative Per Share Data.")
(5) This column reflects the percentage of the outstanding shares of Old Kent Common Stock which the specified person will hold
following the consummation of the Merger. These percentages were computed by reference to a total of 40,530,990 shares of Old
Kent Common Stock outstanding. This number assumes that the number of shares to be issued in the Merger will be equal to the
number of shares to be repurchased by Old Kent in connection with the Merger. (See "Market Value of Shares.")
</TABLE>
Interest of Certain Persons
As of December 31, 1993, executive officers and directors of EdgeMark are or
may be deemed to be the beneficial owners of a total of 417,540 shares, or 26.55
percent of the outstanding shares of EdgeMark Common Stock. (See "Voting and
Management Information--Voting Securities and Principal Stockholders of
EdgeMark.")
As of February 17, 1994, certain individuals, including officers of EdgeMark
and its subsidiaries, held stock options to acquire 117,802 shares of EdgeMark
Common Stock. (See "Voting Securities and Principal Stockholders of EdgeMark.")
Before the Merger becomes effective, EdgeMark will amend these stock options, if
they have not been exercised and if they are still in effect, so that they will
become, if and when the Merger becomes effective, options to acquire, for an
equivalent price, the number of shares of Old Kent Common Stock that would have
been acquired if the options to acquire EdgeMark Common Stock had been exercised
immediately prior to the effective time of the Merger. The options will in all
other respects contain substantially the same terms and conditions as they do
presently.
After the effective date of the Merger, OKFC Subsidiary will cause two
persons, to be selected by OKFC Subsidiary from those who presently serve on
the EdgeMark board of directors, to be elected or appointed to the board of
directors of Old Kent Bank, Elmhurst, Illinois. Such directors will, after
their initial election or appointment, be subject to reelection at the
discretion of the sole stockholder of OKFC Subsidiary on the same basis as
other directors.
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No director or executive officer of EdgeMark owns any shares of Old Kent
Common Stock. No director or executive officer of Old Kent has any personal
interest in the Merger other than by reason of his or her holdings of Old Kent
Common Stock. Except as otherwise described in this Prospectus and Proxy
Statement, there are no material relationships among the executive officers,
directors and principal stockholders of EdgeMark and the executive officers,
directors and principal shareholders of Old Kent.
GENERAL INFORMATION
Incorporation by Reference
The following documents and information are incorporated by reference into
this Prospectus and Proxy Statement:
Form 10-K Report. Old Kent's Annual Report on Form 10-K filed with the
Commission for the year ended December 31, 1992.
All other reports filed by Old Kent pursuant to Section 13(a) or 15(d) of the
Exchange Act since December 31, 1992.
The description of Old Kent's common stock contained in Old Kent's Form 8-B
filed with the Commission on May 31, 1984, and all amendments and reports filed
for the purpose of updating such description.
All other reports Old Kent files with the Commission subsequent to the date of
this Prospectus and Proxy Statement, but prior to the date of the special
meeting of EdgeMark stockholders, pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act.
EdgeMark's Annual Report on Form 10-K filed with the Commission for the year
ended December 31, 1992.
All other reports filed by EdgeMark pursuant to Sections 13(a) or 15(d) of the
Exchange Act since December 31, 1992.
All other reports EdgeMark files with the Commission subsequent to the date of
this Prospectus and Proxy Statement, but prior to the date of the special
meeting of EdgeMark stockholders, pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act.
A copy of EdgeMark's 1992 Annual Report to Stockholders is attached as
Appendix B to this Prospectus and Proxy Statement. This Prospectus and Proxy
Statement incorporates by reference the following portions of EdgeMark's 1992
Annual Report to Stockholders [Edgar note: Page references are to the original.
Page references in parenthetical notes are to the Edgar filing. Edgar page
references will not appear in the definitive prospectus.]:
Market for EdgeMark's Common Stock and Related Security Holder Matters. The
information on the market price of and dividends on EdgeMark's Common Stock and
other stockholder matters set forth on page 13 (B-13).
-45-
Selected Financial Data. The five year summary of selected financial data set
forth on page 12 (B-12).
Consolidated Financial Statements. The Consolidated Balance Sheets, Statements
of Income, Statements of Changes in Stockholders' Equity and Statements of
Changes in Financial Position (including related notes and the report of the
independent auditors) set forth on pages 22-37 (B-20 through B-55).
Supplementary Financial Data. The supplementary financial data set forth on
page 13 (B-13).
Management's Discussion and Analysis of Financial Conditions and Results of
Operations. Management's Discussion and Analysis of Financial Condition and
Results of Operations set forth on pages 14-21 (B-14 through B-27) of EdgeMark's
1992 Annual Report to Stockholders.
EdgeMark's 1992 annual report is not deemed to be filed with the Commission and
is not part of this Prospectus and Proxy Statement except and only to the extent
of the sections of such report listed above which are expressly incorporated by
reference in this Prospectus and Proxy Statement.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Prospectus and Proxy Statement shall be
deemed to be modified or superseded for purposes of this Prospectus and Proxy
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference in this Prospectus and Proxy Statement modified or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus and Proxy
Statement.
Independent Public Accountants
The financial statements and schedules of Old Kent Financial Corporation
incorporated by reference in this prospectus and elsewhere in this registration
statement to the extent and for the periods indicated in their reports have
been audited by Arthur Andersen & Co., independent public accountants, and are
included herein in reliance upon the authority of said firm as experts in
giving said reports.
The consolidated financial statements of EdgeMark and its subsidiaries as
of December 31, 1992, and 1991, and for the years then ended have been included
herein in reliance upon the report of KPMG Peat Marwick, independent certified
public accountants, appearing elsewhere herein, and upon the authority of said
firm as experts in accounting and auditing.
The statements of consolidated earnings, changes in consolidated stockholders'
equity, and consolidated cash flows of EdgeMark Financial Corporation and its
subsidiaries for the year ended December 31, 1990, incorporated by reference in
this Prospectus and Proxy Statement from the Annual Report on Form 10-K of
EdgeMark Financial Corporation for the year ended December 31, 1992, have been
-46-
audited by Deloitte & Touche, independent auditors, as stated in their report
which is incorporated herein by reference, and has been so incorporated herein
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
KPMG Peat Marwick served as EdgeMark's independent auditor for the year
ended December 31, 1992. Audit and related services provided during the year
included the examination of annual financial statements, review and consultation
regarding filings with the Securities and Exchange Commission, and consultation
on other financial, accounting, reporting and tax matters. EdgeMark has selected
KPMG Peat Marwick to serve as EdgeMark's independent auditor in 1993.
EdgeMark expects that representatives of KPMG Peat Marwick will be present
at the special meeting with the opportunity to make a statement if they desire
to do so and will be available to respond to appropriate questions.
Stockholder Proposals
In the event that the EdgeMark stockholders adopt the Plan of Merger and the
Merger is consummated, there will be no annual meeting of EdgeMark stockholders
in 1994. If the Merger is not consummated, proposals of stockholders intended
to be presented at the annual meeting of stockholders in 1994 must be received
by EdgeMark for inclusion in its proxy statement and form of proxy relating to
that meeting a reasonable time before proxy solicitation is made for that
meeting. Stockholders should make their proposals in accordance with Rule 14a-8
promulgated under the Securities Exchange Act of 1934, as amended.
Legal Opinions
Certain legal matters in connection with the proposed Merger will be passed
upon for Old Kent by its general counsel, Warner, Norcross & Judd of Grand
Rapids, Michigan, and for EdgeMark by its counsel, Hinshaw & Culbertson of
Chicago, Illinois.
As of November 17, 1993, partners in and attorneys employed by Warner,
Norcross & Judd and their associates were beneficial owners of a total of
192,300 shares of Old Kent Common Stock having an aggregate market value of
$5,813,775 as of that date. Shares reported as beneficially owned include all
shares as to which such persons have direct or indirect, sole or shared, power
to direct voting or disposition, including personal shares as well as shares
hold in fiduciary capacities.
Sources of Information
The information contained in this Prospectus and Proxy Statement relating
to Old Kent and EdgeMark has been furnished by each of them for inclusion.
EdgeMark has relied upon Old Kent with respect to the accuracy and completeness
of the information concerning Old Kent, and Old Kent has relied upon EdgeMark
with respect to the accuracy and completeness of the information concerning
EdgeMark.
-47-
APPENDIX A
AGREEMENT AND PLAN OF MERGER
APPENDIX A
AGREEMENT AND PLAN OF MERGER
Among
EDGEMARK FINANCIAL CORPORATION,
OLD KENT FINANCIAL CORPORATION,
and
OLD KENT-ILLINOIS, INC.
Dated as of November 1, 1993
TABLE OF CONTENTS
Page
ARTICLE I - THE TRANSACTION . . . . . . . . . . . . . . . . . . 2
1.1 Adoption of Plan of Merger . . . . . . . . . . . . . . . . 2
1.2 The Closing . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Effective Time of the Merger . . . . . . . . . . . . . . . 2
1.4 Merger of EdgeMark with and into OKFC Subsidiary . . . . . 2
1.5 Effect of the Merger . . . . . . . . . . . . . . . . . . . 3
1.6 Additional Actions . . . . . . . . . . . . . . . . . . . . 3
1.7 Surviving Corporation . . . . . . . . . . . . . . . . . . . 3
1.8 Manner and Basis of Converting Shares . . . . . . . . . . . 3
1.9 Cessation of Shareholder Status . . . . . . . . . . . . . . 8
1.10 Surrender of Old Certificates and Distribution of Old Kent
Common Stock . . . . . . . . . . . . . . . . . . . . . . 8
1.11 Cash in Lieu of Fractional Shares . . . . . . . . . . . . . 9
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF OLD KENT . . . . . 9
2.1 Authorization, No Conflicts, Etc. . . . . . . . . . . . . . 10
2.2 Organization and Good Standing . . . . . . . . . . . . . . 11
2.3 Capital Stock . . . . . . . . . . . . . . . . . . . . . . . 11
2.4 Financial Statements . . . . . . . . . . . . . . . . . . . 12
2.5 Absence of Undisclosed Liabilities . . . . . . . . . . . . 12
2.6 Absence of Material Adverse Change . . . . . . . . . . . . 12
2.7 Absence of Litigation . . . . . . . . . . . . . . . . . . . 12
2.8 Conduct of Business . . . . . . . . . . . . . . . . . . . . 13
2.9 Absence of Defaults Under Contracts . . . . . . . . . . . . 13
2.10 Employee Benefit Plans . . . . . . . . . . . . . . . . . . 13
2.11 Environmental Matters . . . . . . . . . . . . . . . . . . . 13
2.12 SEC and Other Filings . . . . . . . . . . . . . . . . . . . 13
2.13 Registration Statement, Etc. . . . . . . . . . . . . . . . 14
2.14 Investment Bankers and Brokers . . . . . . . . . . . . . . 14
2.15 Old Kent Common Stock . . . . . . . . . . . . . . . . . . . 14
2.16 True and Complete Information . . . . . . . . . . . . . . . 14
2.17 Truth and Completeness of Representations and Warranties . 15
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF EDGEMARK . . . . 15
3.1 Authorization, No Conflicts, Etc. . . . . . . . . . . . . . 15
3.2 Organization and Good Standing . . . . . . . . . . . . . . 16
3.3 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . 17
3.4 Capital Stock . . . . . . . . . . . . . . . . . . . . . . . 18
3.5 Financial Statements . . . . . . . . . . . . . . . . . . . 19
3.6 Absence of Undisclosed Liabilities . . . . . . . . . . . . 19
3.7 Absence of Material Adverse Change . . . . . . . . . . . . 19
3.8 Absence of Litigation . . . . . . . . . . . . . . . . . . . 20
A-i
3.9 Conduct of Business . . . . . . . . . . . . . . . . . . . . 20
3.10 Absence of Defaults Under Contracts . . . . . . . . . . . . 20
3.11 SEC and Other Filings . . . . . . . . . . . . . . . . . . . 20
3.12 Registration Statement, Etc. . . . . . . . . . . . . . . . 21
3.13 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . 21
3.14 Title to Properties . . . . . . . . . . . . . . . . . . . . 22
3.15 Leases . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.16 Licenses, Permits, Etc. . . . . . . . . . . . . . . . . . . 23
3.17 Certain Employment Matters . . . . . . . . . . . . . . . . 23
3.18 Employee Benefit Plans . . . . . . . . . . . . . . . . . . 24
3.19 Environmental Matters . . . . . . . . . . . . . . . . . . . 26
3.20 Duties as Fiduciary . . . . . . . . . . . . . . . . . . . . 27
3.21 Investment Bankers and Brokers . . . . . . . . . . . . . . 27
3.22 Related Persons . . . . . . . . . . . . . . . . . . . . . . 27
3.23 Change in Business Relationships . . . . . . . . . . . . . 28
3.24 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.25 Books and Records . . . . . . . . . . . . . . . . . . . . . 28
3.26 Loan Guarantees . . . . . . . . . . . . . . . . . . . . . . 28
3.27 Events Since December 31, 1992 . . . . . . . . . . . . . . 28
3.28 Reserve for Loan Losses . . . . . . . . . . . . . . . . . . 30
3.29 Loan Origination and Servicing . . . . . . . . . . . . . . 30
3.30 Public Communications; Securities Offering . . . . . . . . 30
3.31 No Insider Trading . . . . . . . . . . . . . . . . . . . . 30
3.32 Continuity of Interest . . . . . . . . . . . . . . . . . . 30
3.33 True and Complete Information . . . . . . . . . . . . . . . 31
3.34 Truth and Completeness of Representations and Warranties . 31
ARTICLE IV - CERTAIN COVENANTS . . . . . . . . . . . . . . . . . 31
4.1 EdgeMark Disclosure Statement . . . . . . . . . . . . . . . 31
4.2 Conduct of Business Pending the Effective Time of the Merger 35
4.3 Sale of Mortgage Company . . . . . . . . . . . . . . . . . 38
4.4 Regular Dividends and Compensation Adjustments . . . . . . 38
4.5 Dividend Reinvestment Plan and Stock Purchase Plan . . . . 38
4.6 Data Processing Arrangements . . . . . . . . . . . . . . . 39
4.7 Affiliates . . . . . . . . . . . . . . . . . . . . . . . . 39
4.8 Maintenance of Insurance . . . . . . . . . . . . . . . . . 39
4.9 Competing Proposals . . . . . . . . . . . . . . . . . . . . 39
ARTICLE V - ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . 40
5.1 Registration Statement . . . . . . . . . . . . . . . . . . 40
5.2 Other Filings . . . . . . . . . . . . . . . . . . . . . . 40
5.3 Press Releases . . . . . . . . . . . . . . . . . . . . . . 41
5.4 Indemnification . . . . . . . . . . . . . . . . . . . . . 41
5.5 Stockholder and Lender Approval . . . . . . . . . . . . . 41
5.6 Miscellaneous Agreements and Consents . . . . . . . . . . 41
5.7 Stock Options . . . . . . . . . . . . . . . . . . . . . . 41
5.8 Exchange of Financial Information . . . . . . . . . . . . 42
5.9 Investigation . . . . . . . . . . . . . . . . . . . . . . 42
A-ii
5.10 Environmental Investigation . . . . . . . . . . . . . . . 44
5.11 Board Positions. . . . . . . . . . . . . . . . . . . . . 45
ARTICLE VI - CONDITIONS PRECEDENT TO OLD KENT'S OBLIGATIONS . . . 45
6.1 Renewal of Representations and Warranties, Etc. . . . . . . 45
6.2 Opinion of Legal Counsel . . . . . . . . . . . . . . . . . 45
6.3 Required Approvals . . . . . . . . . . . . . . . . . . . . 48
6.4 Order, Decree, Etc. . . . . . . . . . . . . . . . . . . . . 48
6.5 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . 48
6.6 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . 49
6.7 Registration Statement . . . . . . . . . . . . . . . . . . 49
6.8 Certificate as to Outstanding Shares . . . . . . . . . . . 49
6.9 Change of Control Waivers . . . . . . . . . . . . . . . . 49
ARTICLE VII - CONDITIONS PRECEDENT TO EDGEMARK'S OBLIGATIONS . . . 50
7.1 Renewal of Representations and Warranties, Etc. . . . . . . 50
7.2 Opinion of Legal Counsel . . . . . . . . . . . . . . . . . 50
7.3 Required Approvals . . . . . . . . . . . . . . . . . . . . 52
7.4 Order, Decree, Etc. . . . . . . . . . . . . . . . . . . . . 52
7.5 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . 53
7.6 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . 53
7.7 Registration Statement . . . . . . . . . . . . . . . . . . 53
7.8 Fairness Opinion . . . . . . . . . . . . . . . . . . . . . 53
7.9 Upset Price . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE VIII - ABANDONMENT OF MERGER . . . . . . . . . . . . . . . 54
8.1 Mutual Abandonment Prior to Effective Time of the Merger . 54
8.2 Old Kent's Rights to Terminate . . . . . . . . . . . . . . 54
8.3 EdgeMark's Rights to Terminate . . . . . . . . . . . . . . 56
ARTICLE IX - AMENDMENT AND WAIVER . . . . . . . . . . . . . . . 57
9.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 57
9.2 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . 57
9.3 Specific Enforcement . . . . . . . . . . . . . . . . . . . 57
ARTICLE X - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 58
10.1 Termination Fee . . . . . . . . . . . . . . . . . . . . . 58
10.2 Liability After Termination . . . . . . . . . . . . . . . 60
10.3 Termination of Representations and Warranties. . . . . . . 60
10.4 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 60
10.5 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 60
10.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . 61
A-iii
10.7 Method of Consent or Waiver . . . . . . . . . . . . . . . 61
10.8 Entire Agreement . . . . . . . . . . . . . . . . . . . . . 61
10.9 No Assignment . . . . . . . . . . . . . . . . . . . . . . 61
10.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . 61
10.11 Further Assurances; Privileges . . . . . . . . . . . . . . 61
10.12 Headings, Etc. . . . . . . . . . . . . . . . . . . . . . . 62
10.13 Severability . . . . . . . . . . . . . . . . . . . . . . . 62
DEFINITIONS
Acquisition Price . . . . . . . . . . . . . . . . . . . . . . . . 58
Aggregate Price Per Share . . . . . . . . . . . . . . . . . . . 5
Business Combination . . . . . . . . . . . . . . . . . . . . . . 40
Call Reports . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Certificate of Merger . . . . . . . . . . . . . . . . . . . . . . 2
Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Comparison Stocks Base Price Per Share . . . . . . . . . . . . . 5
Constituent Corporation . . . . . . . . . . . . . . . . . . . . . 2
Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Conversion Ratio . . . . . . . . . . . . . . . . . . . . . . . . 4
Delaware Act . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Document . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
EdgeMark . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
EdgeMark Common Stock . . . . . . . . . . . . . . . . . . . . . . 1
EdgeMark Disclosure Statement . . . . . . . . . . . . . . . . . . 15
EdgeMark Preferred Stock . . . . . . . . . . . . . . . . . . . . 1
EdgeMark Related Person . . . . . . . . . . . . . . . . . . . . . 27
EdgeMark's Subsidiaries . . . . . . . . . . . . . . . . . . . . . 17
Effective Time of the Merger . . . . . . . . . . . . . . . . . . 2
Employee Benefit Plan . . . . . . . . . . . . . . . . . . . . . . 24
Employment-Related Payments . . . . . . . . . . . . . . . . . . . 23
Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . 26
Exchange Agent . . . . . . . . . . . . . . . . . . . . . . . . . 8
Federal Bank Holding Company Act . . . . . . . . . . . . . . . . 1
Federal Reserve Board . . . . . . . . . . . . . . . . . . . . . . 1
Hazardous Substances . . . . . . . . . . . . . . . . . . . . . . 26
Illinois Bank Holding Company Act . . . . . . . . . . . . . . . . 11
Internal Revenue Code . . . . . . . . . . . . . . . . . . . . . . 24
IRS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Lower Limit . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Michigan Banking Code . . . . . . . . . . . . . . . . . . . . . . 11
OKFC Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . 1
OKFC Subsidiary Common Stock . . . . . . . . . . . . . . . . . . 1
Old Certificates . . . . . . . . . . . . . . . . . . . . . . . . 8
Old Kent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Old Kent Base Price Per Share . . . . . . . . . . . . . . . . . . 5
Old Kent Common Stock . . . . . . . . . . . . . . . . . . . . . . 1
Old Kent Disclosure Statement . . . . . . . . . . . . . . . . . . 9
Old Kent - Illinois, Inc. . . . . . . . . . . . . . . . . . . . . 3
Old Kent Merger Price . . . . . . . . . . . . . . . . . . . . . . 58
A-iv
Old Kent Stock Price Per Share . . . . . . . . . . . . . . . . . 4
PBGC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Phase I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Plan of Merger . . . . . . . . . . . . . . . . . . . . . . . . . 1
Pricing Period . . . . . . . . . . . . . . . . . . . . . . . . . 5
Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Prospectus and Proxy Statement . . . . . . . . . . . . . . . . . 14
Purchase Price Per Share . . . . . . . . . . . . . . . . . . . . 4
Registration Statement . . . . . . . . . . . . . . . . . . . . . 14
SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . 39
Securities Exchange Act . . . . . . . . . . . . . . . . . . . . . 30
Stockholders' Meeting . . . . . . . . . . . . . . . . . . . . . . 14
Surviving Corporation . . . . . . . . . . . . . . . . . . . . . . 2
Termination Fee . . . . . . . . . . . . . . . . . . . . . . . . . 58
Unaffiliated Person . . . . . . . . . . . . . . . . . . . . . . . 58
Upper Limit . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Upset Limit . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A-v
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger ("Plan of Merger") is made as of
November 1, 1993, among EDGEMARK FINANCIAL CORPORATION, a Delaware corporation
("EdgeMark"), Merchandise Mart Plaza, Suite 2400, Chicago, Illinois; OLD KENT
FINANCIAL CORPORATION, a Michigan corporation ("Old Kent"), One Vandenberg
Center, Grand Rapids, Michigan; and OLD KENT - ILLINOIS, INC., a Delaware cor-
poration ("OKFC Subsidiary"), 105 S. York Street, Elmhurst, Illinois.
Old Kent and EdgeMark desire that EdgeMark become affiliated with
Old Kent. The affiliation would be effected through the merger of EdgeMark
with and into OKFC Subsidiary, a wholly owned subsidiary of Old Kent. The
merger would be effected in accordance with this Plan of Merger and in
accordance with the General Corporation Act of the State of Delaware, as
amended (the "Delaware Act"). The transactions contemplated by and described
in this Plan of Merger are referred to as the "Merger."
Old Kent is a bank holding company registered as such with the Board
of Governors of the Federal Reserve System (the "Federal Reserve Board") under
the Bank Holding Company Act of 1956, as amended (the "Federal Bank Holding
Company Act"). Old Kent has authorized capital stock consisting of 175,000,000
shares, divided into two classes, 150,000,000 shares of common stock, $1 par
value ("Old Kent Common Stock"), and 25,000,000 shares of preferred stock.
EdgeMark is a bank holding company registered as such with the Federal Reserve
Board under the Federal Bank Holding Company Act. EdgeMark has authorized
capital stock consisting of 6,000,000 shares of common stock, $1 par value
("EdgeMark Common Stock"), all of which are voting shares and 200,000 shares of
preferred stock, of no par value ("EdgeMark Preferred Stock").
OKFC Subsidiary is a wholly owned subsidiary of Old Kent. OKFC Subsidiary has
authorized capital stock consisting of 100,000 shares of common stock, $5 par
value ("OKFC Subsidiary Common Stock"), of which 66,000 shares are issued and
outstanding and held by Old Kent.
The respective Boards of Directors of EdgeMark, Old Kent, and OKFC Subsidiary
each deem the Merger advisable and in the best interests of its corporation and
its respective stockholders and shareholders. By resolutions duly adopted, the
respective Boards of Directors of EdgeMark, Old Kent, and OKFC Subsidiary have
each approved, adopted, and authorized the execution, delivery, and performance
of this Plan of Merger. The respective Boards of Directors of EdgeMark and OKFC
Subsidiary have directed that this Plan of Merger be submitted to EdgeMark's
stockholders and to OKFC Subsidiary's sole stockholder for adoption and
approval.
Therefore, in consideration of the premises and the representations,
warranties, and covenants contained in this Plan of Merger, the parties agree:
A-1
ARTICLE I
THE TRANSACTION
Subject to the terms and conditions of this Plan of Merger, the Merger of
EdgeMark with and into OKFC Subsidiary shall be carried out in the following
manner:
1.1 Adoption of Plan of Merger. As soon as practicable after this Plan
of Merger has been executed and delivered and the Registration Statement (as
described in Section 2.13.1) has become effective, EdgeMark shall submit this
Plan of Merger to its stockholders at a meeting properly called, noticed, and
held for that purpose. At the meeting of EdgeMark's stockholders, and in any
proxy materials used in connection with the meeting, the Board of Directors of
EdgeMark shall, subject to its fiduciary duty, recommend that its stockholders
vote for adoption of this Plan of Merger. Old Kent shall vote all shares of
OKFC Subsidiary Common Stock in favor of approval of this Plan of Merger in a
timely manner.
1.2 The Closing. The Merger shall be consummated as promptly as possible
after a closing (the "Closing"). The Closing shall be held at such time and
location as may be mutually agreed by the parties. In the absence of such
agreement, the Closing shall be held at the offices of Warner, Norcross & Judd,
900 Old Kent Building, 111 Lyon Street, N.W., Grand Rapids, Michigan, at 1:30
p.m., local time, on such date as may be mutually agreed by the parties, or in
the absence of such agreement, on a date specified by either party upon 10
business days' written notice after the last to occur of the following events:
(i) the receipt of all consents and approvals of government regulatory
authorities as legally required to consummate the Merger and the expiration of
all statutory waiting periods; and (ii) the requisite approval of this Plan of
Merger by the stockholders of EdgeMark. Scheduling or commencing the Closing
shall not, however, constitute a waiver of the conditions precedent of either
Old Kent or EdgeMark as set forth in Articles VI and VII, respectively. Upon
consummation of the Closing, EdgeMark and OKFC Subsidiary shall execute and
deliver an appropriate certificate of merger in the form and as required by the
Delaware Act ("Certificate of Merger").
1.3 Effective Time of the Merger. Subject to the terms and conditions of
this Plan of Merger, the Merger shall be consummated as promptly as possible
following the Closing by filing the Certificate of Merger in the manner
required by law. The "Effective Time of the Merger" shall be the close of
business on a date to be specified in the Certificate of Merger, which shall be
as soon as practicable, but not later than 3 days, after the Closing.
1.4 Merger of EdgeMark with and into OKFC Subsidiary. EdgeMark shall be
merged with and into OKFC Subsidiary (each sometimes being referred to as a
"Constituent Corporation" prior to the Merger) upon the filing of the
Certificate of Merger with the administrators authorized by law to administer
the Delaware Act. At the Effective Time of the Merger, the Constituent
Corporations shall become a single corporation, which shall be OKFC Subsidiary
(the "Surviving Corporation"). The Surviving Corporation shall have all of the
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rights, privileges, immunities, and powers, and shall be subject to all of the
duties and liabilities, of a corporation organized under the Delaware Act.
1.5 Effect of the Merger. From and after the Effective Time of the Merger,
the effect of the Merger upon each of the Constituent Corporations and the
Surviving Corporation shall be as provided in Subchapter Nine of the Delaware
Act with respect to the merger of two domestic corporations.
1.6 Additional Actions. If at any time after the Effective Time of the
Merger, the Surviving Corporation shall determine that any 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
EdgeMark or OKFC Subsidiary acquired or to be 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, then EdgeMark and OKFC Subsidiary
and their respective officers and directors shall be deemed to have granted to
the Surviving Corporation an irrevocable power of attorney to execute and
deliver all such proper deeds, assignments, and assurances in law and to do all
acts necessary or proper to vest, perfect, or confirm title to and possession of
such rights, properties, or assets in the Surviving Corporation and to otherwise
carry out the purposes of this Plan of Merger. The proper officers and
directors of the Surviving Corporation are fully authorized in the name of
EdgeMark and OKFC Subsidiary to take any and all such action as may be
contemplated by this Article.
1.7 Surviving Corporation. Immediately after the Effective Time of the
Merger, the Surviving Corporation shall have the following attributes until
they are subsequently changed in the manner provided by law:
1.7.1 Name. The name of the Surviving Corporation shall be "Old Kent -
Illinois, Inc."
1.7.2 Certificate of Incorporation. The Certificate of Incorporation of the
Surviving Corporation shall be the Certificate of Incorporation of OKFC
Subsidiary as in effect immediately prior to the effective time of the Merger.
1.7.3 Bylaws. The Bylaws of the Surviving Corporation shall be the Bylaws of
OKFC Subsidiary as in effect immediately prior to the Effective Time of the
Merger.
1.7.4 Directors. The directors of the Surviving Corporation shall be the
persons who were directors of OKFC Subsidiary immediately prior to the Effective
Time of the Merger.
1.7.5 Officers. The officers of the Surviving Corporation shall be the
persons who were officers of OKFC Subsidiary immediately prior to the Effective
Time of the Merger.
1.8 Manner and Basis of Converting Shares. At the Effective Time of the
Merger:
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1.8.1 Conversion of OKFC Subsidiary Common Stock. The shares of OKFC
Subsidiary Common Stock which are outstanding immediately prior to the Effective
Time of the Merger shall be converted into the same number of shares of common
stock of the Surviving Corporation, which shall represent all of the issued and
outstanding shares of the common stock of the Surviving Corporation.
1.8.2 Treasury Stock and Stock Held by Old Kent. Each share of EdgeMark
Common Stock held by EdgeMark as a treasury share, if any, shall be canceled and
no consideration shall be payable with respect to any such share. Each share of
EdgeMark Common Stock, if any, held by Old Kent or any of Old Kent's
subsidiaries for its own account and not in a fiduciary capacity for a person
other than Old Kent or any of Old Kent's subsidiaries shall be canceled and no
consideration shall be payable with respect to any such share.
1.8.3 Dissenting Shares. Each outstanding share of EdgeMark Common Stock as
to which a legally sufficient demand has been made in accordance with the
Delaware Act and which was not voted in favor of the Merger shall after the
Effective Time of the Merger represent only the rights of a dissenting
stockholder under the Delaware Act and shall not be converted into or represent
a right to receive Old Kent Common Stock as provided in Section 1.8.5
(Conversion of EdgeMark Common Stock) of this Plan of Merger. If, however, the
holder of such a dissenting share of EdgeMark Common Stock shall have failed to
perfect, shall have effectively withdrawn, shall have waived or lost, or shall
otherwise be ineligible to exercise dissenting stockholders' rights, then at
that time that share shall be converted into Old Kent Common Stock as provided
in Section 1.8.5 of this Plan of Merger.
1.8.4 Conversion of EdgeMark Preferred Stock. Each share of EdgeMark
Preferred Stock that is outstanding immediately prior to the Effective
Time of the Merger shall be converted into and remain outstanding as the same
number of shares of preferred stock of the Surviving Corporation ("OKFC
Preferred Stock"), having substantially the same terms and conditions as such
shares do presently. Such shares shall represent all of the issued and
outstanding shares of the preferred stock of the Surviving Corporation.
1.8.5 Conversion of EdgeMark Common Stock. Except as otherwise provided in
this Section 1.8 of this Plan of Merger, each share of EdgeMark Common Stock
that is outstanding immediately prior to the Effective Time of the Merger shall
be converted into the number of shares of Old Kent Common Stock equal to the
Conversion Ratio, subject to payment for fractional shares as provided in
Section 1.11 (Cash in Lieu of Fractional Shares).
1.8.6 Conversion Ratio. Subject to adjustment as provided in Section 1.8.10
(Adjustments), the "Conversion Ratio" shall be equal to the Purchase Price Per
Share (defined below) divided by the Old Kent Stock Price Per Share (defined
below), computed as follows:
(a) Purchase Price Per Share. The "Purchase Price Per Share" shall be $42.79
(which is $62,000,000 divided by the 1,448,939 shares of EdgeMark Common Stock
outstanding as of the date of this Plan of Merger).
(b) Old Kent Stock Price Per Share. The "Old Kent Stock Price Per Share" shall
be the dollar amount equal to the weighted average of all transactions reported
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for Old Kent Common Stock on the Bloomberg Financial Markets System (or an
equivalent system) for each of the last 10 trading days preceding the date of
the Closing for which transactions in Old Kent Common Stock are reported on that
system (the "Pricing Period"); provided, however, that the Old Kent Stock Price
Per Share shall not, in any event, be greater than $35 (the "Upper Limit") or
less that $31 (the "Lower Limit").
1.8.7 Closing Conditions. EdgeMark shall not be obligated to consummate the
Closing at any time when both of the following conditions exist:
(a) Upset Limit. The Old Kent Stock Price Per Share is less than $28 (the
"Upset Limit"), subject to adjustment under Section 1.8.10; and
(b) Market Value Decline. The percentage determined by dividing the Old Kent
Stock Price Per Share (determined for this purpose without application of the
Lower Limit) by $33 (the "Old Kent Base Price Per Share") is more than 15
percentage points less than the percentage determined by dividing the Aggregate
Price Per Share of the Comparison Stocks on the last day of the Pricing Period
by the Aggregate Price Per Share of the Comparison Stocks on October 29, 1993
("Comparison Stocks Base Price Per Share"), subject to adjustment under Section
1.8.10.
1.8.8 Aggregate Price Per Share. The "Aggregate Price Per Share of the
Comparison Stocks" means the sum of the closing prices of all of the Comparison
Stocks as reported in the Wall Street Journal (or a source of equivalent
integrity) for each day in question.
1.8.9 Comparison Stocks. The "Comparison Stocks" mean the most widely held
class of common stock of each of the following corporations (the closing price
and trading symbol of each stock on October 29, 1993, are listed below for
reference purposes only):
<TABLE>
<CAPTION>
Corporation Trading Symbol Price
<S> <C> <C>
Integra Financial Corp. ITG $ 46.00
Huntington Bancshares, Inc. HBAN 25.25
First Tennessee National Corp. FTEN 38.00
Firstar Corporation FSR 32.50
Fifth Third Bancorp FITB 52.50
First of America Bank Corporation FOA 38.50
First Alabama Bancshares, Inc. FABC 33.50
Marshall & Ilsley Corporation MRIS 22.75
Star Banc Corp. STRZ 34.75
AmSouth Bancorporation ASO 29.25
Meridian Bancorp, Inc. MRDD 30.50
Mercantile Bancorporation, Inc. MTL 49.25
Crestar Financial Corporation CF 39.875
Commerce Bancshares, Inc. CBSH 29.125
Michigan National Corporation MNCO 62.125
Aggregate Price Per Share of
Comparison Stocks (subject to adjustment) $563.875
</TABLE>
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provided, however, that any of these corporations shall be excluded from
this definition and from the comparison described in Section 1.87(b) (Market
Value Decline) if between October 29, 1993, and the end the Pricing Period
there is publicly announced a proposed merger, acquisition or business
combination of that corporation or a tender offer, exchange offer for or other
transaction involving the acquisition of a majority of that corporation's
common stock or assets.
1.8.10 Adjustments. The Conversion Ratio and related amounts and related
computations described in Subsections 1.8.6 through 1.8.9 shall be adjusted in
the manner provided in this Section 1.8.10 upon the occurrence of any of the
following events:
(a) Stock Dividends and Distributions. If Old Kent declares a stock dividend,
stock split, or other general distribution of Old Kent Common Stock to holders
of Old Kent Common Stock and the ex-dividend or ex-distribution date for such
stock dividend, stock split, or distribution occurs prior to the beginning of
the Pricing Period, then the Upper Limit, Lower Limit, Upset Limit, and Old Kent
Base Price Per Share shall be adjusted by multiplying them by that ratio (1) the
numerator of which shall be the total number of shares of Old Kent Common Stock
outstanding immediately prior to such dividend, split, or distribution, and (2)
the denominator of which shall be the total number of shares of Old Kent Common
Stock outstanding immediately after such dividend, split, or distribution.
(b) Other Action Affecting Old Kent Common Stock. If there occurs, other than
as described in the preceding subsection, any merger, business combination,
recapitalization, reclassification, subdivision, or combination which would
substantially change the number and value of outstanding shares of Old Kent
Common Stock; a distribution of warrants or rights with respect to Old Kent
Common Stock; or any other transaction which would have a substantially similar
effect; then the nature or amount of the consideration to be received by the
stockholders of EdgeMark in exchange for their shares of EdgeMark Common Stock
and the Conversion Ratio shall be adjusted in such manner and at such time as
Old Kent and EdgeMark may mutually agree to be equitable under the
circumstances. It is intended that 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
the surviving corporation and which merger does not result in any
reclassification of Old Kent Common Stock, holders of EdgeMark Common Stock
would receive, in lieu of each share of Old Kent Common Stock to be issued in
exchange for EdgeMark Common Stock, the kind and amount of shares of Old Kent
stock, other securities, money, and 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.
(c) Postponement of Closing. Old Kent and EdgeMark agree not to convene the
Closing at any time which would result in there being an ex-dividend or
ex-distribution date for an any transaction described in Subsections 1.8.10(a)
(Stock Dividends and Distributions) or 1.8.10(b) (Other Action Affecting Old
Kent Common Stock) during the Pricing Period.
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(d) Adjustment to Comparison Stock Price. If prior to the last day of the
Pricing Period there occurs with respect to one or more of the Comparison Stocks
any stock dividend, stock split, distribution of stock with respect to stock or
similar transactions changing the number and value of issued and outstanding
shares of that stock, then an adjustment shall be made to the price of that
Comparison Stock that was used in computing the Comparison Stocks Base Price Per
Share in the manner of the adjustment described in Subsection 1.8.10(a) (Stock
Dividends and Distributions) (unless such transaction results in excluding that
Comparison Stock from the definition of "Comparison Stocks").
(e) Employee Stock Options, Etc. Notwithstanding the foregoing subsections of
this Section 1.8.10, no adjustment shall be made to the Conversion Ratio, the
Upper Limit, the Lower Limit, the Upset Limit or the Old Kent Base Price Per
Share in the event of the issuance of additional shares of Old Kent Common Stock
pursuant to the exercise of stock options pursuant to stock option plans of Old
Kent, or the grant or sale of shares to, or for the account of, Old Kent
employees pursuant to restricted stock, deferred stock compensation, thrift,
employee stock purchase, and other benefit plans of Old Kent.
(f) Authorized but Unissued Shares. Notwithstanding the other provisions of
this Section 1.8.10, no adjustment shall be made to the Conversion Ratio, the
Upper Limit, the Lower Limit, the Upset Limit or the Old Kent Base Price Per
Share 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 for
consideration which the Board of Directors, or a duly authorized committee of
the Board of Directors, of Old Kent in its reasonable business judgment
determines to be fair and reasonable.
(g) Changes in Capital. Subject only to making any adjustment to the
Conversion Ratio and related computations prescribed by this Section 1.8.10,
nothing contained in this Plan of Merger is intended to preclude Old Kent from
amending its 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 which are convertible into shares of capital
stock.
(h) Increase in Outstanding Shares of EdgeMark Common Stock. In the event
that the number of shares of EdgeMark Common Stock outstanding is greater than
1,448,939 for any reason whatsoever (whether or not such increase constitutes a
breach of this Plan of Merger), other than as a result of the exercise of
EdgeMark Stock Options identified in Section 5.7 (Stock Options), then the
Conversion Ratio shall be adjusted to that ratio determined by multiplying the
Conversion Ratio by a fraction (1) the numerator of which shall be 1,448,939
(the total number of shares of EdgeMark Common Stock outstanding as of the date
of this Plan of Merger), and (2) the denominator of which shall be the total
number of shares of EdgeMark Common Stock outstanding as of the Effective Time
of the Merger, excluding not more than 130,802 shares, if any, issued after the
date of this Plan of Merger upon exercise of EdgeMark Stock Options identified
in Section 5.7 (Stock Options).
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1.9 Cessation of Shareholder Status. As of the Effective Time of the
Merger, record holders of certificates which represented shares of EdgeMark
Common Stock outstanding immediately prior to the Effective Time of the Merger
("Old Certificates") shall cease to be stockholders of EdgeMark and shall have
no rights as EdgeMark stockholders. Such Old Certificates shall then represent
the right to receive shares of Old Kent Common Stock, except as otherwise
provided in this Plan of Merger, and the right to receive cash in lieu of
fractional shares, all as provided in this Plan of Merger.
1.10 Surrender of Old Certificates and Distribution of Old Kent Common
Stock. After the Effective Time of the Merger, Old Certificates shall be
exchangeable by the holders thereof for new stock certificates representing the
number of shares of Old Kent Common Stock to which such holders shall be
entitled, in the following manner:
1.10.1 Transmittal Materials. Within three days after the Effective
Time of the Merger, or as soon thereafter as is practicable, Old Kent shall
send or cause to be sent to each record holder of EdgeMark Common Stock as of
the Effective Time of the Merger transmittal materials for use in exchanging
that holder's Old Certificates for Old Kent Common Stock certificates. The
transmittal materials will contain instructions with respect to the surrender
of Old Certificates.
1.10.2 Exchange Agent. As soon as practicable after the Effective
Time of the Merger, Old Kent will deliver to Old Kent Bank and Trust Company,
or such other bank or trust company as Old Kent may designate (the "Exchange
Agent"), the number of shares of Old Kent Common Stock issuable and the amount
of cash payable for fractional shares in the Merger. The Exchange Agent shall
not be entitled to vote or exercise any rights of ownership with respect to
such shares of Old Kent Common 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 persons entitled to such shares. Old Kent and
the Exchange Agent shall appoint Old Kent Bank, Elmhurst, Illinois, or another
bank with offices in Chicago as an agent for purposes of facilitating the
physical exchange of certificates and other documents as provided in this Plan
of Merger.
1.10.3 Delivery of New Certificates. Old Kent shall cause the Exchange Agent
to promptly issue and deliver stock certificates in the names and to the
addresses as appear on EdgeMark's stock records as of the Effective Time of the
Merger 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:
(a) Receipt of Old Certificates. With respect to each EdgeMark stockholder,
the Exchange Agent shall have received all of the Old 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
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(b) Satisfactory Form. Such certificates, transmittal materials, affidavits,
and bonds are in a form and condition reasonably acceptable to Old Kent and the
Exchange Agent.
1.10.4 Dividends Pending Surrender. Whenever a dividend is declared
by Old Kent on Old Kent Common Stock which is payable to shareholders of record
of Old Kent as of a record date on or after the Effective Time of the Merger,
the declaration shall include dividends on all shares issuable under this Plan
of Merger. No former stockholder of EdgeMark shall be entitled to receive a
distribution of any such dividend until the physical exchange of that stock-
holder's Old Certificates for new Old Kent Common Stock certificates shall have
been effected. Upon the physical exchange of that stockholder's Old Certif-
icates, that 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, which may have been imposed or paid thereon) declared and paid
with respect to the shares of Old Kent Common Stock represented thereby.
1.10.5 Stock Transfers. On or after the Effective Time of the Merger, there
shall be no transfers on the stock transfer books of EdgeMark of
the shares of EdgeMark Common Stock which were issued and outstanding
immediately prior to the Effective Time of the Merger. If, after the Effective
Time of the Merger, Old Certificates are properly presented for transfer, then
they shall be canceled and exchanged for stock certificates representing shares
of Old Kent Common Stock as provided in this Plan of Merger. After the
Effective Time of the Merger, ownership of such shares as are represented by
any Old Certificates may be transferred only on the stock transfer records of
Old Kent.
1.10.6 Exchange Agent's Discretion. The Exchange Agent shall have
discretion to determine reasonable rules and procedures relating to the issu-
ance and delivery of certificates of Old Kent Common Stock into which shares of
EdgeMark Common Stock are converted in the Merger and governing the payment for
fractional shares of EdgeMark Common Stock.
1.11 Cash in Lieu of Fractional Shares. Each holder of EdgeMark Common
Stock who would otherwise have been entitled to receive a fraction of a share
of Old Kent Common Stock shall receive, in lieu thereof, an amount of cash,
rounded to the nearest penny, determined by multiplying such fraction by the
Old Kent Stock Price Per Share (determined for this purpose only without
application of the Upper Limit or Lower Limit).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF OLD KENT
Old Kent represents and warrants to EdgeMark that, except as otherwise set
forth in a disclosure statement (the "Old Kent Disclosure Statement"), which
will be delivered to EdgeMark within 30 days after the date of the execution of
this Plan of Merger:
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2.1 Authorization, No Conflicts, Etc.
2.1.1 Authorization of Agreement. The execution, delivery, and performance
of this Plan of Merger by Old Kent and by OKFC Subsidiary have been duly
authorized and approved by all necessary corporate action. When executed and
delivered, this Plan of Merger will be legally binding on and enforceable
against Old Kent and OKFC Subsidiary in accordance with its terms.
2.1.2 No Conflict, Breach, Violation, Etc. The execution, delivery,
and performance of this Plan of Merger by Old Kent and OKFC Subsidiary, and the
consummation of the Merger, do not and will not violate, conflict with, or
result in a breach of:
(a) Articles, Certificate or Bylaws. Any provision of Old Kent's or OKFC
Subsidiary's Articles of Incorporation, Certificate of Incorporation or Bylaws;
or
(b) Statutes, Judgments, Etc. Any statute, code, ordinance, rule, regulation,
judgment, order, writ, arbitral award, decree, or injunction applicable to Old
Kent or Old Kent's subsidiaries, assuming the timely receipt of each of the
approvals referred to in Section 2.1.4 (Required Approvals).
2.1.3 No Contractual Breach, Default, Liability, Etc. The execution,
delivery, and performance of this Plan of Merger by Old Kent and OKFC
Subsidiary, and the consummation of the Merger, do not and will not:
(a) Agreements, Etc. Violate, conflict with, result in a breach of,
constitute a default under, require any consent, approval, waiver, extension,
amendment, authorization, notice or filing under, or extinguish any material
contract right of Old Kent or any of Old Kent's subsidiaries under any
agreement, mortgage, lease, commitment, indenture, other instrument, or
obligation to which Old Kent or any of Old Kent's subsidiaries is a party or by
which they are bound or affected:
(1) Which is material to the business, income, or financial condition of Old
Kent and its subsidiaries on a consolidated basis; or
(2) The violation or breach of which could prevent Old Kent or OKFC
Subsidiary from consummating the Merger;
(b) Regulatory Restrictions. Violate, conflict with, result in a breach of,
constitute a default under, 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 or OKFC
Subsidiary is a party or subject, or by which it is bound or affected; or
(c) Tortious Interference. Subject EdgeMark or EdgeMark's Subsidiaries to
liability for tortious interference with contractual rights.
2.1.4 Required Approvals. No notice to, filing with, authorization
of, exemption by, or consent or approval of, any public body or authority is
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necessary for the consummation of the Merger by Old Kent and OKFC Subsidiary
other than in connection or compliance with the provisions of the Delaware Act,
compliance with federal and state securities laws, bylaws and rules of the
National Association of Securities Dealers, Inc., and the consents,
authorizations, or approvals required under the Federal Bank Holding Company
Act, the Michigan Banking Code of 1969, as amended (the "Michigan Banking
Code"), and the Illinois Bank Holding Company Act of 1957, as amended (the
"Illinois Bank Holding Company Act").
2.2 Organization and Good Standing. Old Kent 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 com-
pany duly registered and in good standing with 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 such
qualification or admission is material to its business.
2.3 Capital Stock.
2.3.1 Classes and Shares. The authorized capital stock of Old Kent
consists of 175,000,000 shares divided into two classes as follows: (i)
150,000,000 shares of common stock, $1 par value, of which, as of October 21,
1993, a total of 40,574,530 shares were legally issued and outstanding; and
(ii) 25,000,000 shares of preferred stock, none of which were issued and
outstanding as of the date of this Plan of Merger.
2.3.2 No Other Capital Stock. As of the execution of this Plan of Merger:
(a) Other than Old Kent Common Stock, there is no security or class of
securities issued and outstanding which represents or is convertible into
capital stock of Old Kent; and
(b) There are no outstanding subscriptions, options, warrants, or rights to
acquire any capital stock of Old Kent, or agreements 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 pursuant to the exercise of
stock options pursuant to stock option plans and the grant or sale of shares to,
or for the account of, employees and directors pursuant to restricted stock,
deferred stock compensation, and other benefit plans.
2.3.3 Issuance of Shares. Between October 21, 1993, and the execution of
this Plan of Merger, no additional shares of capital stock have been issued by
Old Kent, except as set forth in, or as contemplated by, this Plan of Merger,
and except pursuant to the exercise of employee stock options pursuant to
employee stock option plans, and the grant or sale of shares to, or for the
account of, employees pursuant to restricted stock, deferred stock compensation,
or other benefit plans.
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2.3.4 Voting Rights. Other than the shares of OKFC Subsidiary Common Stock,
neither Old Kent nor any of Old Kent's subsidiaries has outstanding any
security or issue of securities:
(a) The holder or holders of which have the right to vote on the approval of
the Merger or this Plan of Merger; or
(b) Which entitle the holder or holders to consent to, or withhold consent on,
the Merger or this Plan of Merger.
2.4 Financial Statements. The consolidated financial statements of Old
Kent and Old Kent's subsidiaries as of and for the year ended December 31,
1992, as reported on by Old Kent's independent accountants, Arthur Andersen &
Co., and the unaudited consolidated financial statements of Old Kent and Old
Kent's subsidiaries as of and for the quarters ended March 31, 1993, June 30,
1993, and September 30, 1993, including all schedules and notes relating to
such statements, as previously delivered to EdgeMark, are correct and complete
in all material respects. These statements fairly present Old Kent's and Old
Kent's subsidiaries' financial condition and results of operations on a
consolidated basis on the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles applied
consistently throughout the periods indicated (except as otherwise noted in
such financial statements).
2.5 Absence of Undisclosed Liabilities. Except as and to the extent
reflected or reserved against in the consolidated balance sheet of Old Kent as
of December 31, 1992, and the notes thereto, as of that date neither Old Kent
nor any of its subsidiaries had liabilities or obligations, secured or
unsecured (whether accrued, absolute, or contingent) which were, or as to which
there is a reasonable probability that they could be, materially adverse to the
business, income or financial condition of Old Kent and its subsidiaries on a
consolidated basis.
2.6 Absence of Material Adverse Change. Since December 31, 1992, there
has been no material adverse change in the business, income, or financial
condition of Old Kent and its subsidiaries on a consolidated basis. No facts
or circumstances have been discovered from which it reasonably appears that
there is a significant risk and reasonable probability that there will occur a
material adverse change in the business, income, or financial condition of Old
Kent and Old Kent's subsidiaries on a consolidated basis for reasons specific
to Old Kent and not applicable to the banking industry in general.
2.7 Absence of Litigation. There is no action, suit, proceeding, claim,
arbitration, or investigation pending or threatened by any person, including
without limitation any governmental or regulatory agency, against Old Kent or
any of its subsidiaries, or the assets or business of Old Kent or any of its
subsidiaries, any of which has or may have a material adverse effect on the
business, income, or financial condition of Old Kent and its subsidiaries on a
consolidated basis. There is no factual basis known to Old Kent which presents
a reasonable potential for any such action, suit, proceeding, claim, arbitra-
tion, or investigation.
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2.8 Conduct of Business. Old Kent and its subsidiaries have conducted
their respective businesses and used their respective properties substantially
in compliance with all federal, state, and local laws, civil or common,
ordinances and regulations, including without limitation applicable federal and
state banking laws; 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, and fair
labor standards, and insurance; and "Environmental Laws" as defined in Sec-
tion 3.19.2; except for violations which would not have a material adverse
effect on the business, income, or financial condition of Old Kent and its
subsidiaries on a consolidated basis.
2.9 Absence of Defaults Under Contracts. To the best knowledge of Old
Kent after reasonable investigation, there is not under any contract or
agreement to which Old Kent or any of its subsidiaries is a party, or by which
they are bound, any existing default by Old Kent, any of Old Kent's
subsidiaries, or any other party, which would have a material adverse effect on
the business, income, or financial condition of Old Kent and its subsidiaries
on a consolidated basis.
2.10 Employee Benefit Plans. With respect to any "employee welfare
benefit plan," any "employee pension 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"), maintained by or
for Old Kent or to which Old Kent has made payments or contributions on behalf
of its employees (each referred to as an "Employee Benefit Plan"), Old Kent and
each Employee Benefit Plan are in substantial compliance with applicable
sections of ERISA and the Internal Revenue Code, except to the extent that
noncompliance is not material to the business, income, or financial condition
of Old Kent and its subsidiaries on a consolidated basis.
2.11 Environmental Matters. Old Kent and its subsidiaries have complied
with all Environmental Laws (as defined in Section 3.19.2), except to the
extent that noncompliance is not material to the business, income, or financial
condition of Old Kent and its subsidiaries on a consolidated basis.
2.12 SEC and Other Filings. In the last five years:
2.12.1 SEC Filings. Old Kent has filed, and will continue to file
in a timely manner, all required filings with the Securities and Exchange
Commission (the "SEC"), including without limitation all Form 10-K and 10-Q
Reports;
2.12.2 Regulatory Filings. Old Kent has filed in a timely manner all other
material filings with other regulatory bodies for which filings are
required; and
2.12.3 Complete and Accurate. All such filings, as amended, were complete
and accurate in all material respects as of the dates of such filings,
and there were no misstatements or omissions therein which, as of the making of
this representation and warranty, would presently be material to the business,
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income, or financial condition of Old Kent and its subsidiaries on a
consolidated basis.
2.13 Registration Statement, Etc.
2.13.1 "Document." The term "Document," when capitalized in this Plan of
Merger, 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
EdgeMark stockholders in connection with the annual or special meeting of
stockholders prescribed by Section 1.1 (the "Stockholders' Meeting"); and (iii)
any other documents to be filed with the SEC, the Federal Reserve Board, the
State of Illinois, the State of Michigan, or any other regulatory agency in
connection with the transactions contemplated by this Plan of Merger.
2.13.2 Accurate Information. None of the information to be supplied
by Old Kent for inclusion, or included, in any Document will:
(a) Be false or misleading with respect to any material fact, or omit to state
any material fact necessary to make the statements therein not misleading (i)
at the respective times such Documents are filed; (ii) with respect to the
Registration Statement, when it becomes effective; and (iii) with respect to
the Prospectus and Proxy Statement, when it is mailed.
(b) With respect to the Registration Statement and the Prospectus and Proxy
Statement, as either may be amended or supplemented, at the time of the
Stockholders' Meeting, be false or misleading with respect to any material
fact, or omit to state any material fact necessary to correct any statement in
any earlier communication with respect to the solicitation of any proxy for the
Stockholders' Meeting.
2.13.3 Compliance of Filings. All documents which Old Kent is responsible
for filing with the SEC and any regulatory agency in connection with the Merger
will comply as to form in all material respects with the provisions of
applicable law.
2.14 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 the Merger.
2.15 Old Kent Common Stock. The shares of Old Kent Common Stock and OKFC
Preferred Stock to be issued in the Merger in accordance with this Plan of
Merger have been duly authorized and, when issued as contemplated by this Plan
of Merger, will be legally issued, fully paid, and nonassessable shares.
2.16 True and Complete Information. No schedule, statement, list, cer-
tificate, or other information furnished or to be furnished by Old Kent in
connection with this Plan of Merger, including the Old Kent Disclosure State-
ment, contains or will contain any untrue statement of a material fact, or
omits or will omit to state a material fact necessary to make the statements
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contained therein, in light of the circumstances in which they are made, not
misleading.
2.17 Truth and Completeness of Representations and Warranties.
2.17.1 True at the Closing. Old Kent further warrants that its
representations and warranties in this Plan of Merger will be true in all
material respects at the Closing. All of such representations and warranties
made with respect to specified dates or events shall still be true at the
Closing in all material respects with respect to such dates or events.
2.17.2 Untrue Representations and Warranties. During the term of this Plan
of Merger, if Old Kent becomes aware of any facts or of the occurrence or
impending occurrence of any event which would cause one or more of Old Kent's
representations and warranties contained in this Plan of Merger to become
untrue, or would have caused one or more of such representations and warranties
(except in the case of representations and warranties expressly made only as of
the execution of this Plan of Merger) to be untrue had such facts been known or
had such event occurred prior to the execution of this Plan of Merger, then:
(a) Notice. Old Kent shall immediately give detailed written notice thereof
to EdgeMark; and
(b) Remedy Unless Waived. Old Kent shall use all reasonable efforts to change
such facts or events to make such representations and warranties true, unless
the same shall have been waived in writing by EdgeMark.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF EDGEMARK
EdgeMark represents and warrants to Old Kent that, except as otherwise set
forth in a disclosure statement (the "EdgeMark Disclosure Statement"), which
will be delivered to Old Kent within 30 days after the date of the execution of
this Plan of Merger:
3.1 Authorization, No Conflicts, Etc.
3.1.1 Authorization of Agreement. The execution, delivery, and performance
of this Plan of Merger by EdgeMark have been duly authorized and approved by all
necessary corporate action. When executed and delivered, this Plan of Merger
will be legally binding on and enforceable against EdgeMark in accordance with
its terms, except that the consummation of the Merger is subject to the approval
of EdgeMark's stockholders as described in Section 1.1 (Adoption of Plan of
Merger).
3.1.2 No Conflict, Breach, Violation, Etc. The execution, delivery, and
performance of this Plan of Merger by EdgeMark, and the consummation of the
Merger, do not and will not violate, conflict with, or result in a breach of:
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(a) Certificates or Bylaws. Any provision of EdgeMark's Certificate of
Incorporation or Bylaws; or
(b) Statutes, Judgments, Etc. Any statute, code, ordinance, rule, regulation,
judgment, order, writ, arbitral award, decree, or injunction applicable to
EdgeMark or EdgeMark's Subsidiaries (as defined in this Plan of Merger),
assuming the timely receipt of each of the approvals referred to in Section
3.1.4 (Required Approvals).
3.1.3 No Contractual Breach, Default, Liability, Etc. The execution,
delivery, and performance of this Plan of Merger by EdgeMark, and the
consummation of the Merger, do not and will not:
(a) Agreements, Etc. Violate, conflict with, result in a breach of,
constitute a default under, require any consent, approval, waiver, extension,
amendment, authorization, notice or filing under, or extinguish any material
contract right of EdgeMark or any of EdgeMark's Subsidiaries under any
agreement, mortgage, lease, commitment, indenture, other instrument, or
obligation to which EdgeMark or any of EdgeMark's Subsidiaries is a party or by
which they are bound or affected:
(1) Which is material to the business, income, or financial condition of
EdgeMark or any of EdgeMark's Subsidiaries on a consolidated basis; or
(2) The violation or breach of which could prevent EdgeMark from
consummating the Merger;
(b) Regulatory Restrictions. Violate, conflict with, result in a breach of,
constitute a default under, require any consent, approval, waiver, extension,
amendment, authorization, notice, or filing under any memorandum of
understanding or similar regulatory consent agreement to which EdgeMark or any
of Edgemark's Subsidiaries is a party or subject, or by which it is bound or
affected; or
(c) Tortious Interference. Subject Old Kent or Old Kent's subsidiaries to
liability for tortious interference with contractual rights.
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 EdgeMark other than in
connection or compliance with the provisions of the Delaware Act, compliance
with federal and state securities laws, and the consents, authorizations,
approvals, or exemptions required under the Federal Bank Holding Company Act,
the Michigan Banking Code, and the Illinois Bank Holding Company Act.
3.2 Organization and Good Standing. EdgeMark is a corporation duly
organized, validly existing, and in good standing under the laws of the State
of Delaware. EdgeMark 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. EdgeMark is a bank holding com-
pany duly registered and in good standing with the Federal Reserve Board under
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the Federal Bank Holding Company Act. EdgeMark is duly qualified to conduct
business in the State of Illinois as a foreign corporation. EdgeMark is not
required to be qualified or admitted to conduct business as a foreign cor-
poration in any other state in which such qualification or admission would be
material to its business.
3.3 Subsidiaries.
3.3.1 Ownership of Subsidiaries. Except for directors' qualifying shares as
to which enforceable repurchase agreements exist (which are identified in the
EdgeMark Disclosure Statement), EdgeMark owns all of the issued and outstanding
shares of capital stock of Merchandise National Bank, Edgewood Bank, EdgeMark
Bank-Lombard, First National Bank of Lockport, EdgeMark Bank-Rosemont, and
EdgeMark Investment Services, Inc., free and clear of all claims, security
interests, pledges, or liens of any kind other than a pledge of the capital
stock of the subsidiaries which are banks to LaSalle National Bank, Chicago,
Illinois, to secure repayment of the outstanding debt reflected in EdgeMark's
financial statements as of December 31, 1992. As of the date of the execution
of the Plan of Merger, EdgeMark Bank-Lombard owns all of the issued and
outstanding shares of EdgeMark Mortgage Corporation free and clear of any
claims, security interests, pledges, or liens of any kind. The foregoing banks
and corporations shall be collectively referred to as "EdgeMark's Subsidiaries"
in this Plan of Merger. Each of EdgeMark's Subsidiaries is duly organized,
validly existing, and in good standing under the laws of the United States of
America, the State of Illinois, or the state of its organization, as the case
may be. EdgeMark 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 engaged in an active trade or
business or which holds any significant assets other than as stated in this
Section 3.3.
3.3.2 Rights to Capital Stock. There are no outstanding subscriptions,
options, warrants, rights to acquire, or any other similar agreements pertaining
to the capital stock of EdgeMark's Subsidiaries.
3.3.3 Qualification and Power. Each of EdgeMark's Subsidiaries:
(a) Foreign Qualification. Is qualified or admitted to conduct business in
each state in which such qualification or admission would be material to its
business; and
(b) Corporate Power. Has full corporate power and authority to carry on its
business as and where now being conducted.
3.3.4 FDIC; Insurance Assessments. Each of EdgeMark's Subsidiaries which is
a bank maintains in full force and effect deposit insurance through the FDIC.
Each of EdgeMark's Subsidiaries which is a bank 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.
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3.3.5 Regulatory Fees and Charges. Each of EdgeMark's Subsidiaries
which is a bank has paid as and when due all material fees, charges,
assessments, or the like to each and every governmental or regulatory agency
having jurisdiction as required by law, regulation, or rule.
3.3.6 Assets Used in Business. The nonfinancial assets owned or leased by
EdgeMark and EdgeMark's Subsidiaries constitute all of the assets held for use
or used in connection with the business of EdgeMark and EdgeMark's Subsidiaries
and are adequate to carry on such business as presently conducted. All of
EdgeMark's and EdgeMark's Subsidiaries' nonfinancial assets and properties are
in good operating condition and in a good state of maintenance and repair, and
in the possession of EdgeMark or EdgeMark's Subsidiaries.
3.3.7 Banking Business. Each of EdgeMark's Subsidiaries which is a bank is
eligible for acquisition by a bank holding company headquartered in Michigan
under the Illinois Bank Holding Company Act.
3.4 Capital Stock.
3.4.1 Classes and Shares. The authorized capital stock of EdgeMark
consists of (i) 6,000,000 shares of common stock, $1 par value, of which, as of
the date and time of the execution of this Plan of Merger, 1,448,939 were
issued and outstanding and 130,802 shares were reserved for issuance in
connection with outstanding employee stock options; and (ii) 200,000 shares of
preferred stock, of no par value, of which, as of the date and time of the
execution of this Plan of Merger, 80,000 shares were issued and outstanding.
3.4.2 No Other Capital Stock. There is no security or class of securities
authorized or issued which represents or is convertible into capital stock of
EdgeMark except as described in this Section 3.4. As of the execution of this
Plan of Merger, there are no outstanding subscriptions, options, warrants, or
rights to acquire any capital stock of EdgeMark, or agreements to which EdgeMark
is a party or by which it is bound to issue capital stock other than a total of
130,802 shares issuable under stock options.
3.4.3 Issuance of Shares. After the execution of this Plan of Merger, the
number of issued and outstanding shares of EdgeMark Common Stock is subject to
change before the Effective Time of the Merger only by reason of the issuance of
additional shares of EdgeMark Common Stock upon exercise of employee stock
options, described in Section 3.4.2 (No Other Capital Stock).
3.4.4 Voting Rights. Other than the shares of EdgeMark Common Stock
and EdgeMark Preferred Stock described in this Section 3.4, neither EdgeMark
nor any of EdgeMark's Subsidiaries has outstanding any security or issue of
securities:
(a) The holder or holders of which have the right to vote on the approval of
the Merger or this Plan of Merger; or
(b) Which entitle the holder or holders to consent to, or withhold consent on,
the Merger or this Plan of Merger.
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3.4.5 Preferred Stock. All issued and outstanding shares of EdgeMark
Preferred Stock are callable for redemption at their stated value, without
penalty or premium (but with a dividend rate adjustment as provided in the
applicable Certificate of Designation of Rights and Preferences), on any
Quarterly Payment Date as specified in the applicable Certificate of Designation
of Rights and Preferences. All dividends upon EdgeMark Preferred Stock have
been, and prior to the Closing will be, paid when due under the adjustable rate
option provided under the applicable Certificate of Designation of Rights and
Preferences.
3.5 Financial Statements.
3.5.1 Financial Statements. The consolidated financial statements
of EdgeMark and EdgeMark's Subsidiaries as of and for the each of three years
ended December 31, 1990, 1991, and 1992, as reported on by EdgeMark's
independent accountants, KPMG Peat Marwick, and the unaudited consolidated
financial statements of EdgeMark and EdgeMark's Subsidiaries as of and for each
of the quarters ending March 31, 1993, June 30, 1993, and September 30, 1993,
including all schedules and notes relating to such statements, as previously
delivered to Old Kent, are correct and complete in all material respects.
These statements fairly present EdgeMark's and EdgeMark's Subsidiaries'
financial condition and results of operations on a consolidated basis on the
dates and for the periods indicated, and have been prepared in conformity with
generally accepted accounting principles applied consistently throughout the
periods indicated (except as otherwise noted in such financial statements).
3.5.2 Call Reports. The consolidated reports of condition and income of
EdgeMark's Subsidiaries which are banks as of and for each of the years ended
December 31, 1990, 1991, and 1992, and as of and for the each of the quarters
ended March 31, June 30, and September 30, 1993, as filed with the FDIC, and the
consolidated reports of condition and income of EdgeMark and EdgeMark's
Subsidiaries to be filed with the FDIC prior to the Effective Date of the
Merger, including all schedules and notes relating to such reports (col-
lectively, the "Call Reports"), are correct and complete and will be correct
and complete in all material respects. The Call Reports which have been filed
were prepared, and the Call Reports to be filed will be prepared, in confor-
mity with applicable regulatory accounting principles applied consistently
throughout the periods indicated (except as otherwise noted in such reports).
3.6 Absence of Undisclosed Liabilities. Except as and to the extent
reflected or reserved against in the consolidated balance sheet of EdgeMark and
EdgeMark's Subsidiaries as of December 31, 1992, and the notes thereto, neither
EdgeMark nor any of EdgeMark's Subsidiaries had, as of such date, liabilities
or obligations, secured or unsecured (whether accrued, absolute, or contingent)
which are, or as to which there is a reasonable probability that they could be,
materially adverse to the income or financial condition of EdgeMark or any of
EdgeMark's Subsidiaries.
3.7 Absence of Material Adverse Change. Since December 31, 1992, there
has been no material adverse change in the business, income, or financial
condition of EdgeMark or any of EdgeMark's Subsidiaries. No facts or circum-
stances have been discovered from which it reasonably appears that there is a
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significant risk and reasonable probability that there will occur a material
adverse change in the business, income, or financial condition of EdgeMark or
any of EdgeMark's Subsidiaries for reasons specific to EdgeMark and not
applicable to the banking industry in general.
3.8 Absence of Litigation. There is no action, suit, proceeding, claim,
arbitration, or investigation pending or threatened by any person, including
without limitation any governmental or regulatory agency, against EdgeMark,
EdgeMark's Subsidiaries, or the assets or business of EdgeMark or any of
EdgeMark's Subsidiaries, any of which has or may have a material adverse effect
on the business, income, or financial condition of EdgeMark or such EdgeMark
Subsidiary. There is no factual basis known to EdgeMark which presents a
reasonable potential for any such action, suit, proceeding, claim, arbitration,
or investigation.
3.9 Conduct of Business. EdgeMark and EdgeMark's Subsidiaries have
conducted their respective businesses and used their respective properties sub-
stantially in 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 3.19.2; except for
violations which would not have a material adverse effect on the business,
income, or financial condition of EdgeMark or any of EdgeMark's Subsidiaries.
3.10 Absence of Defaults Under Contracts. To the best knowledge of
EdgeMark after reasonable investigation, there is not under any contract or
agreement to which EdgeMark or any of EdgeMark's Subsidiaries is a party, or by
which they are bound, any existing default by EdgeMark, any of EdgeMark's Sub-
sidiaries, or any other party, which could have a material adverse effect on
the business, income, or financial condition of EdgeMark or any of EdgeMark's
Subsidiaries.
3.11 SEC and Other Filings. In the last five years:
3.11.1 SEC Filings. EdgeMark has filed, and will continue to file, in a
timely manner all required filings with the SEC, including without limita-
tion all Form 10-K and 10-Q Reports;
3.11.2 Regulatory Filings. EdgeMark has filed in a timely manner all other
filings with other regulatory bodies for which filings are required;
3.11.3 Complete and Accurate. All such filings, as amended, were complete
and accurate in all material respects as of the dates of such filings, and there
were no misstatements or omissions therein which, as of the making of this
representation and warranty, would presently be material to the business,
income, or financial condition of EdgeMark or any of EdgeMark's Subsidiaries;
and
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3.11.4 All such filings complied in all material respects with all
regulations, forms, and guidelines applicable to such filings.
3.12 Registration Statement, Etc.
3.12.1 Accurate Information. None of the information to be supplied
by EdgeMark for inclusion, or included, in any Document will:
(a) Be false or misleading with respect to any material fact, or omit to state
any material fact necessary to make the statements therein not misleading (i)
at the respective times such Documents are filed; (ii) with respect to the
Registration Statement, when it becomes effective; and (iii) with respect to
the Prospectus and Proxy Statement, when it is mailed.
(b) With respect to the Registration Statement and the Prospectus and Proxy
Statement, as either may be amended or supplemented, at the time of the
Stockholders' Meeting, be false or misleading with respect to any material
fact, or omit to state any material fact necessary to correct any statement in
any earlier communication with respect to the solicitation of any proxy for the
Stockholders' Meeting.
3.12.2 Compliance of Filings. All documents which EdgeMark is responsible
for filing with the SEC and any regulatory agency in connection with the Merger
will comply as to form in all material respects with the provisions of
applicable law.
3.13 Tax Matters.
3.13.1 Tax Returns. EdgeMark and EdgeMark's Subsidiaries have duly and
timely filed all material tax returns which they have by law been required to
file, including without limitation those with respect to income, withholding,
social security, unemployment, franchise, real property, personal property, and
intangibles taxes. Each of such tax returns, reports, and statements, as
amended, is correct and in substantial compliance in all material respects with
all applicable laws and regulations.
3.13.2 Tax Assessments and Payments. All taxes and assessments, including
any penalties, interest, and deficiencies relating to those taxes and
assessments, due and payable by EdgeMark and EdgeMark's Subsidiaries have been
paid in full as and when due. The provisions made for taxes on the consolidated
balance sheet of EdgeMark and EdgeMark's Subsidiaries as of December 31, 1992,
are sufficient for the payment of all federal, state, county, and local taxes of
EdgeMark and EdgeMark's Subsidiaries accrued but unpaid as of the date
indicated, whether or not disputed, with respect to all periods through December
31, 1992.
3.13.3 Tax Audits. The federal consolidated income tax returns of EdgeMark
have not been audited by the Internal Revenue Service ("IRS") since Edgemark's
organization. There is no tax audit or legal or administrative proceeding for
assessment or collection of taxes pending or, to EdgeMark's knowledge,
threatened with respect to EdgeMark or EdgeMark's Subsidiaries. No claim for
assessment or collection of taxes has been asserted with respect to
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EdgeMark or any of EdgeMark's Subsidiaries. No waiver of any limitations stat-
ute or extension of any assessment or collection period has been executed by or
on behalf of EdgeMark or EdgeMark's Subsidiaries.
3.14 Title to Properties. EdgeMark and EdgeMark's 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 (including those reflected in the consolidated balance
sheet of EdgeMark and EdgeMark's Subsidiaries as of December 31, 1992, except
as since disposed of in the ordinary course of business), free and clear of all
liens and encumbrances, except:
3.14.1 Reflected on Balance Sheet. As reflected on the consolidated
balance sheet of EdgeMark and EdgeMark's Subsidiaries as of December 31, 1992,
and the notes thereto;
3.14.2 Normal to Business. Liens for current taxes not yet delinquent, and
liens or encumbrances which are normal to the business of EdgeMark and
EdgeMark's
Subsidiaries and which are not material in relation to the business, income, or
financial condition of EdgeMark or any of EdgeMark's Subsidiaries; and
3.14.3 Immaterial Imperfections. Such imperfections of title, easements, 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, or which
would not otherwise be material to the business, income, or financial condition
of EdgeMark or any of EdgeMark's Subsidiaries.
To the best of EdgeMark's knowledge, no building or improvement on any real
property owned by EdgeMark or EdgeMark's Subsidiaries encroaches on any
easement or property owned by another, and no building or property owned by
another encroaches on any real property owned by EdgeMark or EdgeMark's
Subsidiaries or on any easement the benefit of which runs to real property
owned by EdgeMark or EdgeMark Subsidiaries. To the best of EdgeMark's
knowledge, none of the boundaries of any parcel of real property owned by
EdgeMark or EdgeMark's Subsidiaries deviates substantially from those shown on
the survey of such parcel, if any, attached to the EdgeMark Disclosure
Statement or from what they appear to be through visual inspection.
3.15 Leases. All leases pursuant to which EdgeMark or EdgeMark's
Subsidiaries, as lessee, lease real or personal property which is material to
the business of EdgeMark or any of EdgeMark's Subsidiaries, are valid, effec-
tive, and enforceable against the lessor in accordance with their respective
terms. There is not under any of such leases any existing default, or any
event which with notice or lapse of time or both would constitute a default,
with respect to either EdgeMark or EdgeMark's Subsidiaries, or to the best
knowledge of EdgeMark, the other party. None of such leases contains a
prohibition against assignment by EdgeMark or EdgeMark's Subsidiaries, by
operation of law or otherwise, or any other provision which would preclude
EdgeMark or any of its direct or indirect subsidiaries from possessing and
using the leased premises for the same purposes and upon the same rental and
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other terms upon consummation of the Merger as are applicable to the possession
and use by EdgeMark or EdgeMark's Subsidiaries as of the date of this Plan of
Merger.
3.16 Licenses, Permits, Etc.
3.16.1 All Licenses, Permits, Etc. EdgeMark and EdgeMark's Subsidiaries hold
all licenses, certificates, permits, franchises, and rights from all
appropriate federal, state, and other public authorities necessary for the
conduct of their businesses as presently conducted, the lack of which would have
a material adverse effect on the business, income, or financial condition of
EdgeMark or any of EdgeMark's Subsidiaries.
3.16.2 Regulatory Action. Neither EdgeMark nor any of EdgeMark's
Subsidiaries:
(a) Has been charged with, or to the best of EdgeMark's knowledge is under
governmental investigation with respect to, any actual or alleged violation of
any statute, ordinance, rule, or regulation; or
(b) Is the subject of any pending or, to EdgeMark's knowledge, threatened
proceeding by any regulatory authority having jurisdiction over its business,
properties, or operations.
3.17 Certain Employment Matters.
3.17.1 Employment Policies, Programs, and Procedures. The policies,
programs and practices of EdgeMark and EdgeMark's Subsidiaries relating to
wages, hours of work, and other terms and conditions of employment are in
compliance in all material respects with applicable laws, orders, regulations,
public policies and ordinances governing employment and terms and conditions of
employment.
3.17.2 Record of Payments. There are no existing or outstanding obligations
of EdgeMark or EdgeMark's Subsidiaries, whether arising by operation of law,
civil or common, by contract, or by past custom, for "Employment-Related
Payments," as defined in Section 3.17.3, to trusts or other funds or to any
governmental agency or to any present or former director, officer, employee, or
agent (or his or her heirs, survivors, legatees, or legal representatives) which
have not been duly recorded on the books and records of EdgeMark or EdgeMark's
Subsidiaries and paid when due or duly accrued as a liability.
3.17.3 "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 or social security benefits, or for fringe
benefits, including vacation or holiday pay, bonuses and other forms of
compensation, or for medical insurance or medical expenses, which are payable to
present or former directors, officers, employees, or agents or their survivors,
heirs, legatees, or legal representatives.
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3.17.4 Employment Claims. There are no disputes, claims, or charges, pending
or, to EdgeMark's knowledge, threatened, alleging breach of any express or
implied employment contract or commitment, or material breach of any applicable
law, order, regulation, public policy or ordinance relating to employment or
terms and conditions of employment, and there is no basis for any valid claim or
charge with regard to such matters.
3.17.5 Disclosure of 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 EdgeMark or EdgeMark's Subsidiaries which
is not terminable by EdgeMark or EdgeMark's 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 FASB 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 survivors of any employee.
3.18 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 ERISA,
maintained by or for the benefit of EdgeMark or EdgeMark's Subsidiaries or to
which EdgeMark or EdgeMark's Subsidiaries have made payments or contributions on
behalf of its employees (each referred to as an "Employee Benefit Plan"):
3.18.1 ERISA Compliance. EdgeMark and EdgeMark's Subsidiaries, each
Employee Benefit Plan, and all trusts created thereunder are in substantial
compliance with ERISA, including Sections 601-608 concerning continuation of
health care coverage, and all other applicable laws and regulations insofar as
such laws and regulations apply to such plans and trusts.
3.18.2 Code Compliance. EdgeMark and EdgeMark's Subsidiaries and each
Employee Benefit Plan which is intended to be a qualified plan under Section
401(a) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue
Code"), and all trusts created thereunder are in compliance with the applicable
provisions of the Internal Revenue Code, including Section 4980B concerning
continuation of health care coverage.
3.18.3 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.
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3.18.4 Plan Termination. No Employee Benefit Plan which 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 subsequent to June 30, 1974, except in
compliance with notice and disclosure to the Internal Revenue Service (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 such termination, all termination procedures have been completed and
there are no pending or potential liabilities to the PBGC, to the plans, or to
participants under such terminated plans. Each such 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.
3.18.5 Multiemployer Plan. No Employee Benefit Plan is a "multiemployer
plan" within the meaning of Section 3(37)(A) of ERISA.
3.18.6 Defined Benefit Plan. No Employee Benefit Plan in effect as of
December 31, 1992, is a "defined benefit plan" within the meaning of Section
3(35) of ERISA.
3.18.7 Payment of Contributions. EdgeMark has made when due all contributions
required under any Employee Benefit Plan and under applicable laws and
regulations.
3.18.8 Payment of Benefits. There are no payments which have become
due from any Employee Benefit Plan, the trusts created thereunder, or from
EdgeMark or EdgeMark's Subsidiaries which have 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.
3.18.9 Accumulated Funding Deficiency. No Employee Benefit Plan which is
intended to be a qualified plan under Section 401(a) of the Internal
Revenue Code and no trust created thereunder has incurred, subsequent to June
30, 1974, an "accumulated funding deficiency" as defined in Section 412(a) of
the Internal Revenue Code and Section 302 of ERISA (whether or not waived).
3.18.10 Filing of Reports. EdgeMark 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 or ERISA, or 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 misstatements or omissions in any such filing which,
as of the making of this representation and warranty, would presently be mate-
rial to the financial condition, net income, business, properties, operations,
or prospects of EdgeMark or any of EdgeMark's Subsidiaries.
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3.19 Environmental Matters.
3.19.1 Hazardous Substances. For purposes of this Plan of Merger,
"Hazardous Substances" has the meaning set forth in Section 9601 of the
Comprehensive Environmental Response Compensation and Liability Act of 1980, 42
U.S.C.A. Section 9601 et seq. ("CERCLA") and also includes any substance now or
hereafter regulated by or subject to any Environmental Laws (as defined below)
and any other pollutant, contaminant, or waste, including, without limitation,
petroleum, asbestos, fiberglass, radon, and polychlorinated biphenyls.
3.19.2 Environmental Laws. For purposes of this Plan of Merger,
"Environmental Laws" means all laws (civil or common), ordinances, rules,
regulations, guidelines, and orders that: (i) regulate air, water, soil, and
solid waste management, including the generation, release, containment, storage,
handling, transportation, disposition, or management of Hazardous Substances;
(ii) regulate or prescribe requirements for air, water, or soil quality; (iii)
are intended to protect public health or the environment; or (iv) establish
liability for the investigation, removal, or cleanup of, or damage caused by,
any Hazardous Substance.
3.19.3 Owned or Operated Property. With respect to: (i) the real estate
owned or leased by EdgeMark or EdgeMark's Subsidiaries and used in the
conduct of their business; (ii) other real estate owned; (iii) to EdgeMark's
knowledge, after reasonable investigation, real estate held and administered in
trust; and (iv) to EdgeMark's knowledge, any real estate formerly owned or
leased by EdgeMark or EdgeMark's Subsidiaries (for purposes of this Section,
properties described in any of (i) through (iv) are collectively referred to as
"premises"):
(a) Construction and Content. None of the premises are constructed of, or
contain as a component part, any material which (either in its present form or
as it may reasonably be expected to change through aging or normal use) releases
or may release any substance, whether gaseous, liquid, or solid, that is a
Hazardous Substance or is known to be (either by single exposure or by repeated
or prolonged exposure) injurious or hazardous to the health of persons occupying
the premises. Without limiting the generality of this Section, the premises
are, and during all applicable limitation periods have been, free of asbestos
and fiberglass 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. No part of the premises has been used for the
generation, manufacture, handling, storage, or disposal of Hazardous Substances.
(c) Underground Storage Tanks. The premises do not contain, and have never
contained, an underground storage tank. With respect to any underground storage
tank listed in the Disclosure Statement as an exception to the foregoing, such
any underground storage tank presently or previously located on the premises is
or has been maintained or removed, as applicable, in compliance with
Environmental Laws, and has not been the source of any release of a Hazardous
Substance to the environment.
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(d) Absence of Contamination. The premises do not contain and are not
contaminated by any quantity of a Hazardous Substance from any source.
(e) Environmental Suits and Proceedings. There is no action, suit,
investigation, liability, inquiry, or other proceeding, ruling, order, or
citation involving EdgeMark or any of EdgeMark's Subsidiaries pending,
threatened, or previously asserted under, or as a result of any actual or
alleged failure to comply with any requirement of, any Environmental Law.
There is no factual basis for any of the foregoing. Without limiting the
generality of this Section, there is no basis for any claim against or
involving EdgeMark or any of its properties or assets under Section 107 of
CERCLA or similar provision of any other Environmental Law.
3.19.4 Loan Portfolio. With respect to any real estate securing any
outstanding loan or related security interest and any owned real estate
acquired in full or partial satisfaction of a debt previously contracted:
(a) Investigation. EdgeMark and EdgeMark's Subsidiaries have 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 EdgeMark Disclosure Statement), and
all applicable laws and regulations, 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.
(b) No Known Contamination. To EdgeMark's knowledge, no such property
contains or is contaminated by any Hazardous Substance.
3.20 Duties as Fiduciary. EdgeMark's Subsidiaries have performed all of
their duties in any capacity as trustee, executor, administrator, registrar,
guardian, custodian, escrow agent, receiver, or other fiduciary in a fashion
which complies in all material respects with all applicable laws, regulations,
orders, agreements, wills, instruments, and common law standards, violation of
which would be material to the business, income, or financial condition of
EdgeMark or any of EdgeMark's Subsidiaries.
3.21 Investment Bankers and Brokers. EdgeMark has employed the investment
banking firm Donaldson, Lufkin & Jenrette Securities Corporation and has no
express or implied agreement with any other person or company relative to any
commission or finder's fee payable with respect to the Merger. EdgeMark's only
financial obligation with respect to investment banking firms is the payment of
fees and expenses which will not exceed 1.75% of the total market value of
consideration paid by Old Kent for EdgeMark Common Stock and stock options in
the Merger (less amounts previously paid), plus expenses. EdgeMark has not
employed any other broker, finder, or investment banker in connection with the
Merger. EdgeMark has no express or implied agreement with any other person or
company relative to any commission or finder's fee payable with respect to the
Merger.
3.22 Related Persons. For purposes of this Plan of Merger, the term
"EdgeMark Related Person" shall mean any director or executive officer of
EdgeMark or EdgeMark's Subsidiaries, their spouses and children, any person who
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is a member of the same household as such persons, and any corporation,
partnership, proprietorship, trust, or other entity of which any such persons,
alone or together, have Control.
3.22.1 Control of Material Assets. Other than in a capacity as a
shareholder, director, or executive officer of EdgeMark or any of EdgeMark's
Subsidiaries, no EdgeMark Related Person owns or controls any material assets
or properties which are used in the business of EdgeMark or EdgeMark's
Subsidiaries.
3.22.2 Contractual Relationships. Other than ordinary and customary
banking relationships, no EdgeMark Related Person has any contractual
relationship with EdgeMark or EdgeMark's Subsidiaries.
3.22.3 Loan Relationships. No EdgeMark Related Person has any outstanding
loan or loan commitment from, or on whose behalf an irrevocable letter of credit
has been issued by, EdgeMark or EdgeMark's Subsidiaries in a principal amount of
$50,000 or more.
3.23 Change in Business Relationships. Neither EdgeMark nor any of
EdgeMark's Subsidiaries has notice, whether on account of the Merger or
otherwise, that (i) any customer, agent, representative, or supplier of
EdgeMark or any of EdgeMark's Subsidiaries intends to discontinue, diminish, or
change its relationship with EdgeMark or any of EdgeMark's Subsidiaries, the
effect of which would be material to the business of EdgeMark or any of
EdgeMark's Subsidiaries; or (ii) any executive officer of EdgeMark intends to
terminate his or her employment.
3.24 Insurance. The EdgeMark Disclosure Statement contains true copies
of each policy of insurance presently in force with respect to the assets,
properties, premises, operations, and personnel of EdgeMark and EdgeMark's
Subsidiaries. EdgeMark and each of EdgeMark's Subsidiaries maintains in full
force and effect insurance on its assets, properties, premises, operations, and
personnel in such amounts and against such risks and losses as are customary
and adequate for comparable banks. There is no unsatisfied claim of $5,000 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 EdgeMark's or EdgeMark's
Subsidiaries' assets, properties, premises, operations, or personnel.
3.25 Books and Records. The minutes contained in corporate minute books
and files of EdgeMark and each of EdgeMark's Subsidiaries (since it was
acquired by EdgeMark) properly and accurately record in all material respects
all actions actually taken by its shareholders, directors, and committees of
directors. The books, accounts, and records of EdgeMark and each of EdgeMark's
Subsidiaries reflect only actual transactions and have been maintained in all
material respects in the usual and regular manner, in accordance with generally
accepted accounting principles consistently applied, and in compliance with all
applicable laws and regulations.
3.26 Loan Guarantees. All guarantees of indebtedness owed to any of
EdgeMark's Subsidiaries, including but not limited to those of the Federal
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Housing Administration, the Small Business Administration, and other state and
federal agencies, are valid and enforceable, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, or other sim-
ilar laws affecting creditors' rights, and by the exercise of judicial dis-
cretion in accordance with general principles applicable to equitable and
similar remedies, and except as would not be material to EdgeMark or any of
EdgeMark's Subsidiaries.
3.27 Events Since December 31, 1992. Neither EdgeMark nor any of
EdgeMark's Subsidiaries has, since December 31, 1992:
3.27.1 Business in Ordinary Course. 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
which do not exceed $50,000.
3.27.2 Strikes or Labor Trouble. Experienced or, to the best knowledge of
EdgeMark, been threatened by any strike, work stoppage, organizational effort,
or other labor trouble, or any other event or condition of any similar character
which has been or could reasonably be expected to be materially adverse to the
business, income, or financial condition of EdgeMark or any of EdgeMark's
Subsidiaries.
3.27.3 Discharge of Obligations. Discharged or satisfied any lien or
encumbrance or paid any obligation or liability other than those shown on
its December 31, 1992, consolidated financial statements, or incurred after the
date thereof, other than in the ordinary course of business or such other
liabilities, obligations, liens, or encumbrances for indebtedness of in excess
of $50,000 in the aggregate.
3.27.4 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 or such other liabilities,
obligations, liens, or encumbrances for indebtedness of in excess of $50,000 in
the aggregate.
3.27.5 Extraordinary Transactions. Entered into any transaction involving
more than $50,000 in the aggregate, other than in the ordinary course of
business, or incurred such other liabilities, obligations, liens, or encum-
brances for indebtedness of in excess of $50,000 in the aggregate.
3.27.6 Contract Amendment or Termination. Made or permitted any amendment or
termination of any contract to which it is a party and which is material to the
business, income, or financial condition of EdgeMark or any of EdgeMark's
Subsidiaries, except as expressly provided in this Plan of Merger.
3.27.7 Anticipated Changes. No facts or circumstances have been discovered
from which it appears that there is a risk that there will occur a materially
adverse change in the financial condition, net income, business, properties,
operations, or prospects of EdgeMark or any of EdgeMark's Subsidiaries.
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3.28 Reserve for Loan Losses. The reserve for loan losses reflected in
EdgeMark's and EdgeMark's Subsidiaries' audited consolidated financial
statements for the period ending December 31, 1992, and Call Reports for the
quarters ending March 31, 1993, June 30, 1993, and September 30, 1993, was
adequate to meet all reasonably anticipated loan losses, net of recoveries
related to loans previously charged off.
3.29 Loan Origination and Servicing. In originating, underwriting,
servicing, and discharging loans, mortgages, land contracts, and other con-
tractual obligations, either for its own account or for the account of others,
EdgeMark's Subsidiaries have complied with all applicable terms and conditions
of such obligations and with all applicable laws, regulations, rules,
contractual requirements, and procedures with respect to such servicing.
3.30 Public Communications; Securities Offering. No annual report,
quarterly report, proxy material, press release, or other communication
previously sent or released by EdgeMark or EdgeMark's Subsidiaries to
EdgeMark's stockholders or the public and no registration statement, notice,
filing, prospectus, offering memorandum, or other communication filed by
EdgeMark or EdgeMark's Subsidiaries with any regulatory agency or furnished by
EdgeMark or EdgeMark's Subsidiaries to any person in connection with the
issuance of shares of EdgeMark Common Stock in its 1988 securities offering was
false or misleading with respect to any material fact, or omitted to state any
material fact necessary to make the statements therein not misleading.
3.31 No Insider Trading. EdgeMark has reviewed its stock transfer records
since December 31, 1992, and has questioned its directors and executive
officers concerning known stock transfers since that date. Based upon that
investigation, to the best of EdgeMark's knowledge, no director or officer of
EdgeMark or EdgeMark's Subsidiaries and no person related to a director or
officer by blood or marriage and residing in the same household has since
December 31, 1992, purchased or sold, or caused to be purchased or sold, any
shares of EdgeMark Common Stock of which such director, officer, or related
person is the record or beneficial owner as determined according to Rule 13d-3
issued under the Securities Exchange Act of 1934, as amended (the "Securities
Exchange Act"), during any period when EdgeMark was in possession of material
nonpublic information.
3.32 Continuity of Interest. There is no plan or intention by the
stockholders of EdgeMark who own 5 percent or more of EdgeMark Common Stock,
and, to the best knowledge of EdgeMark, there is no plan or intention on the
part of the remaining stockholders of EdgeMark who own EdgeMark Common Stock to
sell, exchange, or otherwise dispose of a number of shares of Old Kent Common
Stock received in the transaction that would reduce the EdgeMark's stock-
holders' ownership of Old Kent Common Stock to a number of shares having a
value, as of the Effective Time of the Merger, of less than (i) 50 percent of
the value of all of the formerly outstanding EdgeMark Common Stock and EdgeMark
Preferred Stock as of the same time, (ii) reduced by the stated value of the
EdgeMark Preferred Stock. For purposes of this representation, shares of
EdgeMark Common Stock exchanged for cash in lieu of fractional shares or sur-
rendered by dissenters will be treated as outstanding EdgeMark Common Stock at
the Effective Time of the Merger. Moreover, shares of EdgeMark Common Stock
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and shares of Old Kent Common Stock held by EdgeMark stockholders and otherwise
sold, redeemed, or disposed of prior or subsequent to the transaction will be
considered in making this representation.
3.33 True and Complete Information. No schedule, statement, list, cer-
tificate, or other information furnished or to be furnished by EdgeMark in
connection with this Plan of Merger, including the EdgeMark Disclosure
Statement, contains or will contain any untrue statement of a material fact, or
omits or will 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.
3.34 Truth and Completeness of Representations and Warranties.
3.34.1 True at the Closing. EdgeMark further warrants that its
representations and warranties in this Plan of Merger will be true in all
material respects at the Closing. All of such representations and warranties
made with respect to specified dates or events shall still be true at the
Closing in all material respects with respect to such dates or events.
3.34.2 Untrue Representations and Warranties. During the term of this Plan
of Merger, if EdgeMark becomes aware of any facts or of the occurrence or
impending occurrence of any event which would cause one or more of EdgeMark's
representations and warranties contained in this Plan of Merger to become
untrue, or would have caused one or more of such representations and warranties
(except in the case of representations and warranties expressly made only as of
the execution of this Plan of Merger) to be untrue had such facts been known or
had such event occurred prior to the execution of this Plan of Merger, then:
(a) Notice. EdgeMark shall immediately give detailed written notice thereof
to Old Kent; and
(b) Remedy Unless Waived. EdgeMark shall use all reasonable efforts to change
such facts or events to make such representations and warranties true, unless
the same shall have been waived in writing by Old Kent.
ARTICLE IV
CERTAIN COVENANTS
4.1 EdgeMark Disclosure Statement. EdgeMark shall prepare the EdgeMark
Disclosure Statement, which shall be certified with respect to Section 3.33
(True and Complete Information) on behalf of EdgeMark by its chief executive
officer and its chief financial officer, and shall be delivered to Old Kent not
later than 30 days after the execution of this Plan of Merger. The EdgeMark
Disclosure Statement shall contain appropriate references and cross-references
with respect to disclosures, and appropriate identifying markings with respect
to documents, which pertain to one or more sections or articles of this Plan of
Merger. In addition to any exceptions to EdgeMark's representations set forth
in Article III, the EdgeMark Disclosure Statement shall contain true and
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correct copies of each and every document specified below. Not less than 5
days prior to the Closing, EdgeMark shall deliver to Old Kent an update to the
EdgeMark Disclosure Statement describing any material changes and containing
any new or amended documents, as specified below, which are not contained in
the EdgeMark Disclosure Statement as initially delivered. The update to the
EdgeMark Disclosure Statement shall be certified with respect to Section 3.33
(True and Complete Information) on behalf of EdgeMark by its chief executive
officer and its chief financial officer. The EdgeMark Disclosure Statement and
the update, as of the dates they are delivered, shall contain:
4.1.1 Compensation Plans. All plans, policies or contracts providing for
bonuses, pensions, all sales commission schedules, options, stock purchases,
deferred compensation, severance or termination pay, retirement payments, profit
sharing, or retirement savings, any summary plan description relating thereto,
and, to the extent applicable, the last two annual reports on Form 5500 for each
such plan or contract.
4.1.2 Labor Agreements. All collective bargaining or other contracts or
agreements with any labor union or employee group concerning employees of
EdgeMark or any of EdgeMark's Subsidiaries.
4.1.3 Employment Agreements. All employment agreements not terminable by
EdgeMark or EdgeMark's Subsidiaries upon 60 days' or less notice without penalty
or obligation.
4.1.4 Affirmative Action Programs. All affirmative action plans or programs
covering employees of EdgeMark or EdgeMark's Subsidiaries.
4.1.5 Employment Policies. All employee handbooks, policy manuals, rules and
standards of employment promulgated by EdgeMark or EdgeMark's Subsidiaries with
regard to their employees and presently in effect.
4.1.6 Judgments, Orders or Settlement Agreements. All judgments, orders,
injunctions, court decrees or settlement agreements arising out of or relating
to the labor and employment practices or decisions of EdgeMark or EdgeMark's
Subsidiaries which, by their terms, continue to bind or affect EdgeMark or
EdgeMark's Subsidiaries.
4.1.7 Defaulted Contracts. Excepting any ordinary and customary banking
relationship, all agreements, contracts, mortgages, deeds of trust, leases,
commitments, indentures, notes, or other instruments:
(a) Under which EdgeMark or any of EdgeMark's Subsidiaries is in default or as
to which material provisions, or rights thereunder, have been waived or
materially amended or modified; or
(b) Under which, to the best of EdgeMark's knowledge, another party is in
default under its obligations to EdgeMark or any of EdgeMark's Subsidiaries, or
as to which material provisions, or rights thereunder, have been waived or
materially amended or modified.
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4.1.8 Loan Delinquencies. A list of loans or extensions of credit on
EdgeMark's Subsidiaries' books with a principal balance of $50,000 or more which
are more than 60 days contractually delinquent.
4.1.9 Letters of Credit and Loan Contingencies. A listing of all letters of
credit and obligations to make loans or extend credit which any of EdgeMark's
Subsidiaries cannot reject or terminate without advance notice or penalty in its
sole discretion, and upon which any of EdgeMark's Subsidiaries may be or may
become liable without action or omission of EdgeMark's Subsidiaries after the
Closing, identifying and describing such letters of credit and obligations in
reasonable detail and excepting (if EdgeMark chooses to except them) any such
letter of credit or obligation with respect to which EdgeMark's Subsidiaries'
obligation does not exceed $50,000.
4.1.10 Related Party Contracts. All agreements, contracts, mortgages, deeds
of trust, leases, commitments, indentures, notes, or other instruments, which
are, to the best of EdgeMark's knowledge, with any EdgeMark Related Person,
excepting any ordinary and customary banking relationship.
4.1.11 Related Person Loans. A list of all outstanding loans or loan
commitments from, and all irrevocable letters of credit issued by, EdgeMark or
EdgeMark's Subsidiaries in a principal amount of $50,000 or more to any EdgeMark
Related Person.
4.1.12 Retired Employee Expenses. All plans, agreements, arrangements, or
understandings with respect to payment of medical expenses, insurance, or other
benefits with respect to any former employee, any spouse or child, any member of
the same household, estate, or any survivor of a former employee.
4.1.13 Deeds and Titles. All deeds, titles, or other evidences of title to
real estate and complete and correct lists of all items of personal property
which had a book value in excess of $50,000 as of December 31, 1992,
reflected in the books and records of EdgeMark or EdgeMark's Subsidiaries as
being owned (including those reflected in the consolidated balance sheet of
EdgeMark and EdgeMark's Subsidiaries as of December 31, 1992), except as since
disposed of in the ordinary course of business, and excepting any "other real
estate owned."
4.1.14 Lease Agreements. All leases or other agreements pursuant to which
EdgeMark or EdgeMark's Subsidiaries, as lessee or lessor, lease real or
personal property, excepting any lease as to personal property under which the
aggregate lease payments with respect to that lease do not exceed $50,000.
4.1.15 Other Agreements.
(a) All contracts or agreements to which EdgeMark or EdgeMark's Subsidiaries
are a party or subject which call for aggregate payments in excess of $50,000
with respect to individual items or individual agreements, excepting any
ordinary and customary banking relationship.
(b) All data processing agreements, service agreements, consulting agreements,
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or any similar arrangements not terminable by EdgeMark or EdgeMark's
Subsidiaries upon 60 days' or less notice without penalty, excepting any
agreement which does not require aggregate payments in excess of
$50,000.
(c) All contracts or agreements, whether existing or proposed, for the purchase
of equipment, supplies, other personal or real property, or services which call
for aggregate payments in excess of $50,000.
(d) All loan servicing agreements pursuant to which EdgeMark or EdgeMark's
Subsidiaries services loans for others.
(e) All mortgage forward commitments and similar agreements pursuant to which
EdgeMark or EdgeMark's Subsidiaries sells to others mortgages which it
originates.
(f) All interest rate swap agreements and other agreements relating to hedging
interest rate risks.
(g) All agreements and related correspondence pertaining to EdgeMark's sale of
EdgeMark Mortgage Company's assets and operations.
4.1.16 Insurance Policies. All policies of insurance maintained by
EdgeMark or EdgeMark's Subsidiaries with respect to assets, properties, prem-
ises, operations, and personnel, and copies of the most recent insurance audit,
review, or report (if any).
4.1.17 Charter Documents and Bylaws. The certificate of incorporation and
articles of incorporation, as the case may be, and bylaws of EdgeMark and
EdgeMark's Subsidiaries, including all amendments to date.
4.1.18 Stockholder List. A stockholder list as of the most recent date
available identifying each stockholder, indicating the number of shares
held, and providing the stockholder's record address.
4.1.19 Employee Benefit Plans. All Employee Benefit Plans, including
amendments. The latest determination letter issued by the IRS with respect to
each Employee Benefit Plan which is a qualified plan under Section 401(a) of the
Code and any determination letter issued with respect to each amendment to each
such Plan, any summary plan description relating thereto, and all administrative
forms for each Employee Benefit Plan.
4.1.20 Executive Employment and Compensation. Definitive statements
identifying and describing in a summary manner each and every written or oral,
express or implied contract, agreement, or arrangement pertaining to the
employment or compensation of EdgeMark's directors, officers, or employees who
in 1992 received, or in 1993 are contractually entitled to receive, aggregate
compensation of $50,000 or more. Each definitive statement shall be separately
signed and acknowledged as being true, correct, and complete by each such
person.
4.1.21 Management Letters. Copies of any letters or memoranda to
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management or special reports received during each of the last three years by
EdgeMark or EdgeMark's Subsidiaries from EdgeMark's independent public accoun-
tants which set forth criticisms of, or advice, suggestions, or recommendations
for improvements in, any aspect of the accounting for or operation of EdgeMark
or EdgeMark's Subsidiaries.
4.1.22 Change of Control. Copies of agreements, contracts, loans, mortgages,
deeds of trust, leases, commitments, indentures, notes, or other instruments,
which may be accelerated, terminated, or otherwise materially affected by virtue
of the change of control of EdgeMark upon consummation of the Merger.
4.1.23 Long-term Debt. Copies of any loan agreements, notes, indentures,
security agreements, mortgages, pledge receipts, guaranties, and related
documents with respect to all long-term indebtedness of EdgeMark or EdgeMark's
Subsidiaries.
4.1.24 Regulatory Orders. Copies of any order, decree, memorandum, agreement,
or understanding with regulatory agencies binding upon or affecting the
operations of EdgeMark or Edgemark's Subsidiaries or their directors or
officers in their capacities as such.
4.1.25 Patents, Trademarks, Copyrights, and Trade Secrets. All trademarks,
trade names, service marks, patents, or copyrights, whether or not registered or
the subject of an application for registration, which are owned by EdgeMark or
EdgeMark's Subsidiaries or licensed from a third party.
4.1.26 Environmental Investigation Policies. Copies of all policies
formally adopted by the Board of Directors of EdgeMark and each of EdgeMark's
Subsidiaries as currently in effect and, with respect to environmental matters,
copies of all policies that have been in effect during the last 10 years
regarding the performance of environmental investigations of properties
accepted as collateral for loans or accepted in trust, including the effective
dates of all such policies.
4.2 Conduct of Business Pending the Effective Time of the Merger. From
the execution of this Plan of Merger until the Effective Time of the Merger,
EdgeMark agrees that, except as consented to in writing by Old Kent or as
otherwise provided in this Plan of Merger, EdgeMark shall, and it shall cause
EdgeMark's Subsidiaries to:
4.2.1 Ordinary Course. Conduct its business and manage its property only in
the usual, regular, and ordinary course and not otherwise, in substantially the
same manner as prior to the execution of this Plan of Merger, and not make any
substantial change to its methods of management or operation in respect of such
business or property.
4.2.2 No Inconsistent Actions. Take no action which would be inconsistent
with or contrary to the representations, warranties, and covenants made by
EdgeMark in this Agreement, and take no action which would cause EdgeMark's
representations and warranties to become untrue except as and to the extent
required by applicable laws and regulations or regulatory agencies having
jurisdiction.
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4.2.3 Compliance. Comply in all material respects with all laws,
regulations, agreements, court orders, and administrative orders applicable to
the conduct of its business unless the application of such laws, regulations,
or orders is being contested in good faith and Old Kent has been notified of
such contest.
4.2.4 No Amendments. Make no change in its certificate of incorporation,
articles of association, or articles of incorporation, as the case may be, or
its bylaws.
4.2.5 Books and Records. Maintain its books, accounts, and records in the
usual and regular manner, and in material compliance with all applicable
laws and accounting standards.
4.2.6 No Change in Stock. Except as contemplated by this Plan of Merger,
make no change in the number of shares of its capital stock issued and
outstanding; grant no warrant, option, or commitment relating to its capital
stock; enter into no agreement relating to its capital stock; and issue no
securities convertible into its capital stock.
4.2.7 Maintenance. Use its best 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 excepted.
4.2.8 Preservation of Goodwill. Use its best 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.
4.2.9 Insurance Policies. Use all reasonable efforts to maintain and keep in
full force and effect insurance coverage, so long as such insurance is
reasonably available, on their respective 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.
4.2.10 Charge-Offs. Charge off loans and maintain its reserve for loan
losses, in each case in a manner in conformity with the prior practices of
EdgeMark and EdgeMark's Subsidiaries and applicable industry, regulatory, and
accounting standards.
4.2.11 Policies and Procedures. Make no material change in any policies and
procedures applicable to the conduct of 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.
4.2.12 New Directors or Officers. Except to reelect persons who are
then incumbent officers and directors at annual meetings, not, without first
consulting Old Kent:
(a) Increase the number of directors or fill any vacancy on the board of
directors; or
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(b) Elect or appoint any person to an executive office.
4.2.13 Compensation and Benefits.
(a) Not increase, or agree to increase, the salary or other compensation
payable to, or fringe benefits of, or pay or agree to pay any bonus to (except
for bonuses which will have been earned for 1993 under the EdgeMark Incentive
Compensation Matrix Plan or EdgeMark Mortgage Corporation's Incentive Bonus Plan
as in effect prior to October 1, 1993), any officer or director, or any other
class or group of employees as a class or group, except for increases,
agreements or payments which are reasonable in amount and consistent with the
prior year and which are announced and made only after first consulting with Old
Kent; or
(b) Not introduce, change, 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 or necessary or advisable, in the opinion of counsel, to
maintain any tax qualified status.
4.2.14 New Employment Agreements. Not enter into any employment agreement
which is not terminable by EdgeMark or EdgeMark's Subsidiaries without cost or
penalty upon 60 days' notice or less.
4.2.15 Dividends. With respect to EdgeMark only, not declare or pay any
dividends, nor make any other distribution, in respect of any shares of its
capital stock except as permitted by Section 4.4 (Regular Dividends and
Compensation Adjustments).
4.2.16 Borrowing. Not borrow money except in the ordinary course of
business.
4.2.17 Mortgaging Assets. Not 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, except for property or assets, or any group of related
properties or assets, which have a fair market value of less than $50,000, and
except as described in Section 4.3 (Sale of Mortgage Company).
4.2.18 Notice of Actions. Notify Old Kent of the threat or commencement of
any action, suit, proceeding, claim, arbitration, or investigation against or
relating to: (i) EdgeMark's or EdgeMark's Subsidiaries' directors, officers, or
employees in their capacities as such; (ii) EdgeMark's or EdgeMark's
Subsidiaries' assets, liabilities, business, or operations; or (iii) the Merger
or this Plan of Merger.
4.2.19 Cooperation. Take such actions as may be reasonably necessary to
effect the Merger.
4.2.20 Large Expenditures. Not pay, agree to pay, or incur any liability,
excepting such liabilities which have been accrued on its books as of the
execution of this Plan of Merger, for the purchase or lease of any item
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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
EdgeMark and EdgeMark's Subsidiaries, excepting pursuant to prior commitments
made by EdgeMark or EdgeMark's Subsidiaries that are disclosed in the EdgeMark
Disclosure Statement.
4.2.21 New Service Arrangements. Not enter into, or commit to enter
into, any agreement for trust, consulting, professional, data processing, or
other services to EdgeMark or any of EdgeMark's Subsidiaries which is not ter-
minable by EdgeMark or EdgeMark's Subsidiaries without penalty upon 60 days'
notice or less.
4.2.22 Capital Improvements. Not open, enlarge, or materially remodel any
bank or other facility, and not lease, purchase, or otherwise acquire any real
property for use as a branch bank, or apply for regulatory approval of any new
branch bank, excepting pursuant to prior commitments made by EdgeMark or
EdgeMark's Subsidiaries that are disclosed in the EdgeMark Disclosure Statement.
4.3 Sale of Mortgage Company. As of the date of this Plan of Merger,
EdgeMark is negotiating for the sale and transfer of certain liabilities and
substantially all of the business, assets, operations, and employees of
Edgemark Mortgage Corporation to Comerica Mortgage Corporation. EdgeMark shall
keep Old Kent currently apprised of the status of those negotiations and that
transaction. EdgeMark shall not enter into any binding agreement to accomplish
that transaction without Old Kent's prior written consent, which shall not be
unreasonably withheld. EdgeMark shall not, in any event, agree to any covenant
not to compete that would be binding upon Old Kent, Old Kent's subsidiaries,
EdgeMark or EdgeMark's Subsidiaries or their successors or assigns; except,
after consultation with Old Kent, for reasonable and appropriate agreements to
not specifically solicit EdgeMark Mortgage Corporation customers and employees.
4.4 Regular Dividends and Compensation Adjustments.
4.4.1 Common Stock. EdgeMark may declare and pay cash dividends upon Common
Stock semiannually at a rate of $.10 per share in June and $.15 per share in
December in a manner, on dates, and with respect to record dates consistent with
its past practice. However, EdgeMark shall adjust the record date for its
regularly scheduled dividend, if any (otherwise permissible under this Section
4.4), with respect to the period in which the Effective Time of the Merger
occurs if necessary to assure that EdgeMark stockholders receive one and only
one dividend payable in, or with a record date occurring in, the quarter in
which the Effective Time of the Merger occurs, whether with respect to EdgeMark
Common Stock or Old Kent Common Stock received in the Merger.
4.4.2 Preferred Stock. EdgeMark shall pay dividends upon EdgeMark
Preferred Stock in a manner, on dates, and with respect to record dates
consistent with its past practice and in accordance with the Certificate of
Designation of Rights and Preferences governing the EdgeMark Preferred Stock.
4.5 Dividend Reinvestment Plan and Stock Purchase Plan. EdgeMark shall
suspend the operation of its Dividend Reinvestment Plan and Stock Purchase Plan
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from the date of execution of this Plan of Merger until either (i) the Effective
Time of the Merger, or (ii) this Plan of Merger is terminated and the Merger
abandoned.
4.6 Data Processing Arrangements. Until the Effective Time of the Merger,
EdgeMark shall advise Old Kent of all anticipated renewals or extensions of
existing data processing services agreements with independent vendors. EdgeMark
agrees to cooperate with Old Kent in negotiating with those vendors the length
of any extension or renewal term of those agreements, which, unless otherwise
agreed with Old Kent, shall not exceed one year from the date of renewal.
EdgeMark agrees to send to each vendor, as and when due, such notices of
nonrenewal as may be necessary or appropriate to prevent those agreements from
automatically renewing for a term of more than one year from the date of
renewal, except as otherwise agreed between EdgeMark and Old Kent.
4.7 Affiliates. The EdgeMark Disclosure Statement shall identify every
person who may, to EdgeMark's reasonable knowledge, be deemed to be an
"affiliate" of EdgeMark for purposes of Rule 145 under the Securities Act of
1933, as amended (the "Securities Act"). EdgeMark shall cause its counsel to
deliver to each person who is identified as an affiliate, on or prior to the
Effective Time of the Merger, advice with respect to such person's obligations
under the Securities Act and the regulations issued thereunder with respect to
disposition of securities of Old Kent. Further, EdgeMark shall use all
reasonable efforts to cause each person who is identified as an affiliate to
deliver to Old Kent on or prior to the Effective Time of the Merger a written
agreement, satisfactory to Old Kent, that such person shall not offer to sell
or otherwise dispose of any shares of Old Kent Common Stock issued to such
person pursuant to the Merger in violation of the Securities Act or the
regulations thereunder.
4.8 Maintenance of Insurance. EdgeMark shall use all reasonable efforts
to obtain renewal of the directors' and officers' liability and corporation
reimbursement insurance in effect on the execution of this Plan of Merger on
terms and conditions reasonably agreeable to EdgeMark. EdgeMark shall consult
with Old Kent regarding any renewals of, and the premiums to be paid for, such
insurance prior to taking any action to renew or terminate such insurance. If
EdgeMark's directors and officers liability insurance policy is canceled or not
renewed by the issuer during the term of this Plan of Merger, EdgeMark shall,
at Old Kent's option, purchase the discovery period offered under the policy.
4.9 Competing Proposals. Neither EdgeMark nor EdgeMark's Subsidiaries
nor any of their directors, officers, employees, investment bankers,
representatives, 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:
4.9.1 No Solicitation. Neither EdgeMark nor EdgeMark's Subsidiaries, nor any
of their directors, officers, employees, investment bankers, representatives, or
agents, shall solicit, invite, negotiate, or discuss 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
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course, or other business combination involving EdgeMark other than the Merger
(a "Business Combination").
4.9.2 Communication of Other Proposals. EdgeMark 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 or shall contain a copy of EdgeMark's
unequivocal rejection of the Proposal in the form actually delivered to the
person from whom the Proposal was received. Thereafter, EdgeMark shall promptly
notify Old Kent of any material changes in the terms, conditions, and status of
any Proposal.
4.9.3 Furnishing Information. EdgeMark shall not furnish or permit any person
or entity under its direct or indirect control to furnish any nonpublic
information concerning EdgeMark or EdgeMark's Subsidiaries to any person who is
not affiliated or under contract with EdgeMark or Old Kent, except as required
by applicable law or regulations.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Registration Statement. As soon as is reasonably practical, Old
Kent agrees to 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
Common Stock as contemplated by this Plan of Merger, together with such amend-
ments as may reasonably be required in order for the Registration Statement to
become effective. Old Kent agrees to provide EdgeMark with the opportunity to
review and comment upon the Registration Statement, each amendment to the
Registration Statement, and each form of the Prospectus and Proxy Statement
before filing. Old Kent agrees to provide EdgeMark 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
agrees to notify EdgeMark of any stop orders or threatened stop orders with re-
spect to the Registration Statement. EdgeMark agrees to provide all necessary
information pertaining to EdgeMark and EdgeMark's Subsidiaries promptly upon
request, and to use its best efforts to obtain the cooperation of EdgeMark's
independent accountants and attorneys, in connection with the preparation of
the Registration Statement.
5.2 Other Filings. Old Kent agrees to prepare and file, as soon as is
reasonably practical, with the Federal Reserve Board, the State of Illinois,
the State of Michigan, and other regulatory agencies, all documents in
connection with the transactions contemplated by this Plan of Merger. Old Kent
agrees to provide EdgeMark with the opportunity to review and comment upon such
documents before filing, and to provide EdgeMark with copies of all
correspondence received from these agencies and all responsive correspondence
sent to these agencies.
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5.3 Press Releases. EdgeMark and Old Kent shall consult with each other
with respect to the form and substance of any press release, Form 8-K, or other
public disclosure of matters related to this Plan of Merger.
5.4 Indemnification. Old Kent acknowledges that any and all rights to
indemnification now existing in favor of the employees, agents, directors or
officers of EdgeMark and EdgeMark's Subsidiaries under their respective
certificate or articles of incorporation, charter, articles of association or
bylaws shall survive the Merger and shall continue with respect to acts or
omissions occurring prior to the Effective Time of the Merger with the same
force and effect as prior to the Effective Time of the Merger. In the event of
any claim or litigation giving rise to such indemnification, Old Kent will
provide the indemnified party with access to and the right to copy all
documents and other information reasonably required for the defense of the
litigation, subject to reasonable precautions to prevent inappropriate use or
disclosure of such documents and information and will reasonably cooperate in
the defense of such litigation. An employee, agent, director or officer of
EdgeMark seeking indemnification pursuant to the provisions of EdgeMark's or
EdgeMark's Subsidiaries' certificate or articles of incorporation, charter,
articles of association or bylaws shall be entitled to have the resolution of
any dispute regarding the right to and the extent of the indemnification,
including without limitation the right to the advancement of or the
reimbursement of legal fees and expenses related to such claim or litigation,
resolved by an arbitrator selected by Old Kent and the party seeking
indemnification in accordance with the rules of the American Arbitration
Association.
5.5 Stockholder and Lender Approval. Old Kent agrees to cooperate with
and lend reasonable assistance to EdgeMark in obtaining the assurances of the
holders of EdgeMark's short-term notes required by Section 8.2.7 (No Lender
Approval), and holders of EdgeMark's Preferred Stock required by Section 8.2.8
(No Preferred Stockholder Approval). This obligation does not require Old Kent
to expend additional sums of money in obtaining the assurances or to agree to
pay any consideration to the lenders or holders, as the case may be, except for
amounts which may be due them under the applicable governing instruments.
5.6 Miscellaneous Agreements and Consents. Subject to the terms and
conditions of this Plan of Merger, each of the parties agrees to use all
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 transactions
contemplated by this Plan of Merger. Old Kent and EdgeMark will use reasonable
efforts to obtain consents of all third parties and governmental bodies
necessary or desirable for the consummation of the Merger.
5.7 Stock Options. Before the Effective Time of the Merger, EdgeMark
will amend the terms of all of its outstanding stock options identified in
Section 3.4.1 (Classes and Shares) so that they will become, if and when the
Merger becomes effective, options to acquire, for an equivalent price, the
number of shares of Old Kent Common Stock that would have been acquired if the
options to acquire EdgeMark Common Stock had been exercised immediately prior
to the Effective Time of the Merger. The options shall in all other respects
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contain substantially the same terms and conditions as they do presently. Old
Kent agrees to honor the options according to their terms and to register the
options and the shares acquired upon their exercise with the SEC on Form S-8,
if and to the extent that they are eligible for registration under that form.
5.8 Exchange of Financial Information. Subject to Section 5.9
(Investigation):
5.8.1 Quarterly Information. EdgeMark and Old Kent shall each, as promptly as
practicable, deliver to the other copies of each quarterly consolidated
financial statement prepared for distribution to stockholders or shareholders,
respectively, after the date of this Plan of Merger.
5.8.2 EdgeMark Information. After the execution of this Plan of Merger until
the Effective Time of the Merger, EdgeMark shall promptly deliver to Old Kent
copies of:
(a) Each monthly internal financial report prepared with respect to EdgeMark
and each of EdgeMark's Subsidiaries on a consolidated or unconsolidated basis.
EdgeMark represents and warrants that such information shall be consistent with
the fundamental information as used for internal purposes by EdgeMark in the
management of its consolidated business; and
(b) Each financial report or statement submitted to regulatory authorities for
EdgeMark and each of EdgeMark's Subsidiaries.
5.8.3 SEC Filings. After the execution of this Plan of Merger until the
Effective Time of the Merger, Old Kent and EdgeMark shall each promptly
deliver to the other copies of all Form 10-K and 10-Q Reports and all other
reports filed with the SEC.
5.9 Investigation.
5.9.1 Old Kent's Access to Information. While this Plan of Merger is in
effect, EdgeMark shall:
(a) Permit, and shall cause EdgeMark's Subsidiaries to permit, full access to
their respective properties, books, and records at reasonable times;
(b) Use reasonable efforts to cause its and its subsidiaries' officers,
directors, employees, accountants, and attorneys to cooperate fully, for the
purpose of permitting a complete and detailed examination of such matters by the
other party's officers, attorneys, accountants, and representatives; and
(c) Furnish, upon request, any information reasonably requested respecting its
and its subsidiaries' property, assets, business, and affairs.
5.9.2 Consent to Disclose. Old Kent acknowledges that certain information
may not be disclosed by EdgeMark or EdgeMark's Subsidiaries without the prior
written consent of persons not affiliated with EdgeMark or EdgeMark's
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Subsidiaries. If such information is requested by Old Kent, then EdgeMark
shall use, or cause its Subsidiaries to use, 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.
5.9.3 EdgeMark's Access to Information. For the purpose of permitting an
examination of Old Kent by such of EdgeMark's officers, attorneys, accountants,
and representatives as have a "need to know" for the purposes of EdgeMark's
evaluation of this Merger, provided that EdgeMark shall cause such parties to
agree to maintain the confidentiality of the information as provided in this
Plan of Merger, while this Plan of Merger is in effect, Old Kent shall:
(a) Permit reasonable access to its properties, books, and records at
reasonable times;
(b) Use reasonable efforts to cause its officers, directors, employees,
accountants, and attorneys to cooperate fully; and
(c) Furnish, upon request, any information reasonably requested respecting its
property, assets, business, and affairs.
5.9.4 Confidentiality. Except as provided in Section 5.9.6 (Other
Information), while this Plan of Merger is in effect and at all times
thereafter, Old Kent and EdgeMark each agree to treat as strictly confidential
and agree not to divulge to any other person, natural or corporate (other than
employees of, and attorneys, accountants, and financial advisers for, such
party who are reasonably believed to have a need for such information in
connection with the Merger), any financial statements, schedules, contracts,
agreements, instruments, papers, documents, or other information relating to
the other party and the other party's subsidiaries which it may come to know as
a direct result of a disclosure by the other party or the other party's sub-
sidiaries, or which may come into its possession directly as a result of and
during the course of such investigation.
5.9.5 Return of Materials. Upon the termination of this Plan of Merger, Old
Kent and EdgeMark 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 notes and summaries of such written materials, in
connection with such investigation, including any and all copies of any of the
foregoing. Old Kent and EdgeMark each agree to preserve intact all such
materials which are returned to them and to make such materials reasonably
available upon request or subpoena, for a period of not less than five years
from the termination of this Plan of Merger or such longer or shorter period of
time as they may mutually agree.
5.9.6 Other Information. The provisions of this Section 5.9 shall not
preclude Old Kent or EdgeMark, or their respective subsidiaries, from using
or disclosing information which is: (i) readily ascertainable from public
information or trade sources; (ii) known by it before the commencement of
discussions between the parties or subsequently developed by it or its
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subsidiaries independent of any investigation under this Plan of Merger or re-
ceived from a third party not under any obligation to EdgeMark or Old Kent, or
their respective subsidiaries, to keep such information confidential; or (iii)
reasonably required to be included in any filing or application required by any
governmental or regulatory agency, including without limitation Old Kent's
application or applications to the Federal Reserve Board, Old Kent's or
EdgeMark's Form 10-K filed with the SEC, and Old Kent's or EdgeMark's annual
report and proxy statement. Old Kent shall permit EdgeMark to review Old
Kent's application or applications to the Federal Reserve Board, the State of
Michigan, and the State of Illinois prior to filing and EdgeMark may reason-
ably request that sensitive or competitive information be separately filed as
confidential in accordance with instructions, rules, and regulations
promulgated by such agencies.
5.10 Environmental Investigation. Old Kent shall engage a mutually
acceptable environmental consultant to conduct a preliminary ("Phase I")
environmental assessment of each of the parcels of real estate used in the
operation of EdgeMark's or EdgeMark's Subsidiaries' business and, upon Old
Kent's reasonable request, any other real estate owned. The fees and expenses
of the consultant with respect to the Phase I assessments shall be shared
equally by Old Kent and EdgeMark. The consultant shall complete and deliver
the Phase I assessments not later than 60 days after the date of this Plan of
Merger. If any environmental conditions are found, suspected, or would tend to
be indicated by the report of the consultant which may be contrary to the
representations and warranties set forth in Section 3.19 (Environmental
Matters), without regard to any exceptions that may be contained in the
EdgeMark Disclosure Statement, then the parties shall obtain from one or more
mutually acceptable consultants or contractors, as appropriate, an estimate of
the cost of any further environmental investigation, sampling, analysis,
remediation, or other follow-up work that may be necessary to address those
conditions in accordance with applicable laws and regulations.
5.10.1 Mutual Agreement. Upon receipt of the estimate of the costs of all
follow-up work to the Phase I assessments or any subsequent investigation phases
that may be conducted, the parties shall attempt to agree upon a course of
action for further investigation and remediation of any environmental condition
suspected, found to exist, or that would tend to be indicated by the report of
the consultant. All work plans for any post-Phase I assessments or remediation,
and any removal or remediation actions that may be performed, shall be mutually
satisfactory to Old Kent and EdgeMark. If the work plans or removal or
remediation actions would entail a material cost to complete, Old Kent and
EdgeMark shall discuss a mutually acceptable modification to this Plan of
Merger. Old Kent and EdgeMark shall cooperate in the review, approval, and
implementation of all work plans.
5.10.2 Remediation by EdgeMark. If the parties are unable to agree upon a
course of action for further investigation and remediation of an environmental
condition or issue raised by an environmental assessment and/or a mutually
acceptable modification to this Plan of Merger, and the condition or issue is
not one for which it can be determined to a reasonable degree of certainty that
the risk and expense to which Old Kent and its subsidiaries would be subject
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as owner of the property involved can be quantified and limited to an immaterial
amount, then Old Kent may abandon this Plan of Merger pursuant to Section 8.2.12
(Environmental Conditions).
5.11 Board Positions. After the Effective Time of the Merger, OKFC
Subsidiary shall cause two persons, to be selected by OKFC Subsidiary from
those who presently serve on the EdgeMark Board of Directors, to be elected or
appointed to the Board of Directors of Old Kent Bank, Elmhurst, Illinois. Such
directors shall, after their initial election or appointment be subject to re-
election at the discretion of the stockholder on the same basis as other
directors.
ARTICLE VI
CONDITIONS PRECEDENT TO OLD KENT'S OBLIGATIONS
All obligations of Old Kent 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. EdgeMark's representations and
warranties shall then be true in all material respects or, if one or more
representations or warranties shall then be untrue, the cumulative effect of
all untrue representations and warranties shall not then be material relative
to the business, income, or financial condition of EdgeMark and EdgeMark's
Subsidiaries on a consolidated basis. For purposes of this Section 6.1.1,
representations and warranties made with respect to specified dates or events
need only to have been true in all material respects as of such dates or
events. Any representation or warranty which becomes untrue because of any
change intended by this Plan of Merger shall not be considered to be a breach
of this Plan of Merger because of such change.
6.1.2 Compliance with Agreements. EdgeMark and EdgeMark's Subsidiaries shall
have performed and complied with all agreements, conditions, and covenants
required by this Plan of Merger to be performed or complied with by EdgeMark and
EdgeMark's Subsidiaries 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 EdgeMark and, with
respect to agreements conditions and covenants pertaining to EdgeMark's Sub-
sidiaries, by appropriate officers of EdgeMark's Subsidiaries, dated as of the
date of the Closing, certifying the foregoing in such detail as Old Kent may
reasonably request, describing any exceptions to such compliance in such
certificates.
6.2 Opinion of Legal Counsel. EdgeMark shall have delivered to Old Kent
an opinion of Pope, Ballard, Shepard & Fowle, Ltd., counsel for EdgeMark, dated
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as of the date of the Closing and reasonably satisfactory to counsel for Old
Kent, to the effect that:
6.2.1 Due Authorization. This Plan of Merger, the execution, delivery, and
performance of this Plan of Merger, and the consummation of the Merger as
provided herein, by EdgeMark have been duly authorized, approved, and adopted by
all requisite action of EdgeMark's Board of Directors and its stockholders.
6.2.2 Organization. EdgeMark is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware.
EdgeMark is duly qualified to do business in, and is in good standing with, the
State of Illinois as a foreign corporation. EdgeMark has the corporate power
to carry on its business substantially as and where it is now being conducted.
6.2.3 Capital Stock. The authorized capital stock of EdgeMark as of
the close of business on the day preceding the Closing consists of (i) the
number of shares of common stock, $1 par value, specified in the opinion of
which the number of shares specified in the opinion are then legally issued and
outstanding, fully paid, and nonassessable, and that the number of shares that
are then reserved for issuance under then outstanding EdgeMark stock options is
as specified in the opinion; and (ii) 200,000 shares of preferred stock, of no
par value, of which, as of the close of business as of the day preceding the
Closing, 80,000 shares then issued and outstanding. All issued and outstanding
shares of EdgeMark Preferred Stock are callable for redemption at the stated
value, without penalty or premium (but with a dividend rate adjustment as
provided in the Certificate of Designation of Rights and Preferences), on any
Quarterly Payment Date as specified in the Certificate of Designation of Rights
and Preferences.
6.2.4 Issuance of Shares. Except as disclosed in such opinion, to
counsel's knowledge:
(a) Since the date and time of the execution of this Plan of Merger, no
additional shares of EdgeMark Common Stock or EdgeMark Preferred Stock have been
authorized for issuance or issued by EdgeMark.
(b) There are no other outstanding subscriptions, options, warrants, rights to
acquire any capital stock of EdgeMark, or agreements to which EdgeMark is a
party or by which it is bound to issue capital stock, except as set forth in the
EdgeMark Disclosure Statement or in such opinion.
6.2.5 Organization of Subsidiaries. Merchandise National Bank, Edgewood
Bank, EdgeMark Bank-Lombard, First National Bank of Lockport, EdgeMark
Bank-Rosemont, EdgeMark Investment Services, Inc., and (if still owned at the
Closing) EdgeMark Mortgage Corporation are each duly organized, validly exist-
ing, and in good standing under the laws of the United States of America, the
State of Illinois, or the State of Delaware as the case may be. Each of
EdgeMark's Subsidiaries possesses all requisite authority to conduct and carry
on its business, substantially where and as it conducts it, under all
applicable federal and state laws.
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6.2.6 Ownership of Subsidiaries. Except for directors' qualifying shares as
to which enforceable repurchase agreements exist (which are identified in the
EdgeMark Disclosure Statement), EdgeMark owns all of the issued and outstanding
shares of capital stock of Merchandise National Bank, Edgewood Bank, EdgeMark
Bank-Lombard, First National Bank of Lockport, EdgeMark Bank-Rosemont, and
EdgeMark Investment Services, Inc., free and clear of all claims, security
interests, pledges, or liens of any kind other than a pledge of the capital
stock of EdgeMark's Subsidiaries which are banks to LaSalle National Bank,
Chicago, Illinois, to secure repayment of the outstanding debt reflected in
EdgeMark's financial statements as of December 31, 1992. Provided that EdgeMark
Bank-Lombard still owns EdgeMark Mortgage Corporation at the date of Closing,
EdgeMark Bank-Lombard owns all of the issued and outstanding shares of EdgeMark
Mortgage Corporation free and clear of any claims, security interests, pledges,
or liens of any kind. To the best of counsel's knowledge, EdgeMark does not
have Control, either directly or indirectly, of any corporation engaged in an
active trade or business or which holds any significant assets other than as
stated in this Section 6.2.6. To the best of counsel's knowledge, there are no
outstanding subscriptions, options, warrants, rights to acquire any capital
stock of EdgeMark's Subsidiaries, or agreements to which EdgeMark or any of
EdgeMark's Subsidiaries is a party or by which it is bound to issue capital
stock of EdgeMark's Subsidiaries.
6.2.7 Valid and Binding. This Plan of Merger constitutes the valid
and binding obligation of EdgeMark, enforceable in accordance with its terms
except as enforceability may be limited by bankruptcy, insolvency, reorganiza-
tion, moratorium, or other similar laws affecting creditors' rights, and by the
exercise of judicial discretion in accordance with general principles
applicable to equitable and similar remedies.
6.2.8 All Approvals Received. All approvals, consents, authorizations, or
modifications as may, to the best of counsel's knowledge, be required to permit
the performance by EdgeMark of its obligations under this Plan of Merger and
consummation of the Merger have been obtained, except as may be required in
order to comply with the registration or qualification requirements of the blue
sky laws of any state with respect to the issuance of Old Kent Common Stock
pursuant to this Plan of Merger.
6.2.9 All Actions Taken. To the best of counsel's knowledge, all other
actions and proceedings required by law or this Plan of Merger to be taken by
EdgeMark and by EdgeMark's Subsidiaries at or prior to the Closing in
connection with this Plan of Merger have been duly and validly taken.
6.2.10 No Breach or Violation. The consummation by EdgeMark of the
transactions contemplated by this Plan of Merger will not, to the best of
counsel's knowledge, result in any breach or violation of, or default under,
any judgment, decree, mortgage, agreement, lease, commitment, indenture, or
other instrument applicable to EdgeMark or to EdgeMark's Subsidiaries, except
as disclosed in such opinion. All consents and approvals of the transactions
contemplated by this Plan of Merger which, to the best of counsel's reasonable
knowledge, are required from any person pursuant to any contract or agreement
to which EdgeMark or EdgeMark's Subsidiaries are a party or subject, or by
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which EdgeMark or EdgeMark's Subsidiaries are bound, have been obtained, except
as disclosed in the EdgeMark Disclosure Statement or in such opinion.
6.2.11 No Litigation. Counsel does not know of any action, suit, proceeding,
claim, arbitration, or investigation pending or threatened against or relating
to EdgeMark or EdgeMark's Subsidiaries, or its or their respective properties or
businesses, which challenges the Merger, or which may result in any liability to
EdgeMark or to EdgeMark's Subsidiaries which would have a material adverse
effect on the business, income, or financial condition of EdgeMark or any of
EdgeMark's Subsidiaries, except as disclosed in the EdgeMark Disclosure
Statement or in such opinion.
Such opinion shall also cover such other matters incident to the transactions
contemplated in this Plan of Merger as Old Kent and its counsel may reasonably
request. In rendering its opinion, Pope, Ballard, Shepard & Fowle, Ltd., may
rely on certificates of governmental officials and officers of EdgeMark or
EdgeMark's Subsidiaries, certificates of EdgeMark's transfer agent, and opinions
of other counsel as to the laws of jurisdictions in which counsel is not
licensed to practice law, and such other evidence as counsel for EdgeMark may
reasonably deem necessary or desirable. Any certificates or legal opinions upon
which EdgeMark's counsel may rely shall also be addressed to Old Kent and Old
Kent shall be entitled to rely thereon. As to each matter with respect to which
EdgeMark's counsel relies upon a legal opinion rendered by other counsel,
EdgeMark's counsel shall state that EdgeMark's counsel has no knowledge of any
fact or circumstance that would render such other counsel's opinion incorrect or
misleading.
6.3 Required Approvals. Old Kent shall have received:
6.3.1 Regulatory. 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 EdgeMark and Old Kent of their
respective obligations under this Plan of Merger and the consummation of the
Merger.
6.3.2 Stockholder. Evidence reasonably satisfactory to Old Kent of the
requisite approval of the stockholders of EdgeMark of this Plan of Merger
and the Merger.
6.4 Order, Decree, Etc. Neither Old Kent nor EdgeMark shall be subject
to any order, decree or injunction of a court or agency of competent
jurisdiction which enjoins or prohibits the consummation of the Merger.
6.5 Proceedings. There shall not be any action, suit, proceeding, claim,
arbitration, or investigation pending or threatened: (i) against or relating
to EdgeMark or EdgeMark's Subsidiaries or their properties or business
which may result in any liability to EdgeMark or EdgeMark's Subsidiaries which
could have a material adverse effect on the financial condition, net income,
business, properties, operations, or prospects of EdgeMark and EdgeMark's Sub-
sidiaries on a consolidated basis; or (ii) which challenges the Merger or this
Plan of Merger.
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6.6 Tax Matters. Old Kent shall have received an opinion of its counsel,
reasonably satisfactory in form and substance, substantially to the effect
that:
6.6.1 The Merger of EdgeMark with and into OKFC Subsidiary will constitute a
reorganization within the meaning of Section 368(a)(1)(A) and Section
368(a)(2)(D) of the Code, and Old Kent, EdgeMark, and OKFC Subsidiary will each
be a "party to a reorganization" within the meaning of Section 368(b) of the
Code.
6.6.2 The basis of the EdgeMark assets in the hands of OKFC Subsidiary will
be the same as the basis of those assets in the hands of EdgeMark immediately
prior to the Merger.
6.6.3 No gain or loss will be recognized to Old Kent or OKFC Subsidiary on
the receipt by OKFC Subsidiary of the assets of EdgeMark in exchange for Old
Kent Common Stock and the assumption by OKFC Subsidiary of the liabilities of
EdgeMark.
6.6.4 The holding period of the assets of EdgeMark in the hands of OKFC
Subsidiary will include the holding period during which such assets
were held by EdgeMark.
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.
6.8 Certificate as to Outstanding Shares. Old Kent shall have received
one or more certificates signed by the secretary of EdgeMark on behalf of
EdgeMark, and by the transfer agent for EdgeMark Common Stock certifying (i)
the total number of shares of EdgeMark Common Stock and EdgeMark Preferred
Stock issued and outstanding as of the close of business on the day immediately
preceding the Closing, and (ii) with respect to the secretary's certification,
the number of options to purchase EdgeMark Common Stock issued as of the
execution of this Plan of Merger and as of the time of the Closing, all in such
form as Old Kent may reasonably request.
6.9 Change of Control Waivers. Old Kent shall have received evidence of
the waiver of any material rights and the waiver of the loss of any material
rights which may be triggered by the change of control of EdgeMark upon
consummation of the Merger under any material agreements, contracts, mortgages,
deeds of trust, leases, commitments, indentures, notes, or other instruments
described in Section 4.1.22 (Change of Control), with the exception of
adjustment of the rate of dividends payable on EdgeMark's Preferred Stock as
provided in the Certificate of Rights and Preferences, all in form and
substance reasonably satisfactory to Old Kent.
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ARTICLE VII
CONDITIONS PRECEDENT TO EDGEMARK'S OBLIGATIONS
All obligations of EdgeMark under this Plan of Merger are subject to
the fulfillment (or waiver in writing by a duly authorized officer of
EdgeMark), prior to or at the Closing, of each of the following conditions:
7.1 Renewal of Representations and Warranties, Etc.
7.1.1 Representations and Warranties. Old Kent's representations and
warranties shall then be true in all material respects or, if one or more
representations or warranties shall then be untrue, the cumulative effect of
all untrue representations and warranties shall not then be material to Old
Kent and its subsidiaries on a consolidated basis. For purposes of this Sec-
tion 7.1.1, representations and warranties made with respect to specified dates
or events need only to have been true in all material respects as of such dates
or events. Any representation or warranty which becomes untrue because of any
change intended by this Plan of Merger shall not be considered to be a breach
of this Plan of Merger because of such change.
7.1.2 Compliance with Agreements. Old Kent and Old Kent's subsidiaries 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
Old Kent's subsidiaries 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 and, with
respect to agreements, conditions, and covenants pertaining to OKFC Sub-
sidiary, by appropriate officers of OKFC Subsidiary on behalf of Old Kent,
dated as of the date of the Closing, certifying the foregoing in such detail as
EdgeMark may reasonably request, describing any exceptions to such compliance
in such certificates.
7.2 Opinion of Legal Counsel. Old Kent shall have delivered to EdgeMark
an opinion of Warner, Norcross & Judd, counsel for Old Kent, dated as of the
date of the Closing and reasonably satisfactory to counsel for EdgeMark, to the
effect that:
7.2.1 Due Authorization. This Plan of Merger, the execution, delivery, and
performance of this Plan of Merger, and the issuance of shares of Old Kent
Common Stock pursuant to this Plan of Merger have been duly authorized,
approved, and adopted by all requisite action of Old Kent's and OKFC
Subsidiary's Board of Directors and, with respect to OKFC Subsidiary, its
stockholder.
7.2.2 Organization. Old Kent and OKFC Subsidiary are each a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Michigan.
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7.2.3 Capital Stock. The authorized capital stock of Old Kent consists of
175,000,000 shares divided into two classes as follows:
(a) 150,000,000 shares of common stock, $1 par value, of which as of October
21, 1993, a total of 40,574,530 shares were legally issued and outstanding; and
(b) 25,000,000 shares of preferred stock, of which no shares were legally
issued and outstanding.
7.2.4 Issuance of Shares. Since October 21, 1993, except as set forth in
such opinion, to counsel's knowledge:
(a) No additional shares of capital stock have been issued by Old Kent, except
shares issued pursuant to the exercise of employee stock options pursuant to
employee stock option plans, and the grant or sale of shares to employees
pursuant to restricted stock, deferred stock compensation, or other benefit
plans.
(b) There are no outstanding subscriptions, options, warrants, rights to
acquire any capital stock of Old Kent, or agreements to which Old Kent is a
party or by which it is bound to issue capital stock other than as set forth in,
or as contemplated by, this Plan of Merger, and except as set forth in the Old
Kent Disclosure Statement or in such opinion.
7.2.5 Valid and Binding. This Plan of Merger constitutes the valid and
binding obligation of Old Kent and OKFC Subsidiary in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency, reor-
ganization, moratorium, or other similar laws affecting creditors' rights, and
by the exercise of judicial discretion in accordance with general principles
applicable to equitable and similar remedies.
7.2.6 All Approvals Received. All such approvals, consents, authorizations,
or modifications as may, to the best of counsel's knowledge, be required to
permit the performance by Old Kent and OKFC Subsidiary of its obligations under
this Plan of Merger and consummation of the Merger have been obtained.
7.2.7 All Actions Taken. All other actions and proceedings required by law or
this Plan of Merger to be taken by Old Kent and Old Kent's subsidiaries at or
prior to the Closing in connection with this Plan of Merger have been duly and
validly taken.
7.2.8 No Breach or Violation.The consummation by Old Kent of the transactions
contemplated by this Plan of Merger will not, to the best of counsel's
knowledge, result in any breach or violation of, or default under, any judgment,
decree, mortgage, agreement, lease, commitment, indenture, or other instrument
applicable to Old Kent, except as disclosed in such opinion. All consents and
approvals of the transactions contemplated by this Plan of Merger which, to the
best of counsel's reasonable knowledge, are required from any person pursuant to
any contract or agreement to which Old Kent or Old Kent's subsidiaries are a
party or subject, or by which Old Kent or Old Kent's subsidiaries are bound,
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have been obtained, except as disclosed in the Old Kent's Disclosure Statement
or in such opinion.
7.2.9 No Litigation. Counsel does not know of any action, suit, proceeding,
claim, arbitration, or investigation pending or threatened against or relating
to Old Kent, or its properties or businesses, which challenges the Merger, or
which may result in any liability to Old Kent which would have a material
adverse effect on the business, income, or financial condition of Old Kent on a
consolidated basis except as disclosed in the Old Kent Disclosure Statement or
in such opinion.
7.2.10 Issuance of Shares Authorized. The shares of Old Kent Common
Stock issued by Old Kent and shares of OKFC Preferred Stock to be issued by
OKFC Subsidiary as contemplated by this Plan of Merger, and to be delivered to
the stockholders of EdgeMark, are duly authorized, and, when issued, will be
legally issued, fully paid, and nonassessable.
Such opinion shall also cover such other matters incident to the transactions
contemplated herein as EdgeMark and its counsel may reasonably request. In
rendering its opinion, Warner, Norcross & Judd may rely on certificates of
governmental officials and officers of Old Kent and Old Kent's subsidiaries,
certificates of Old Kent's transfer agent, and opinions of other counsel as to
the laws of jurisdictions in which counsel is not licensed to practice law, and
such other evidence as counsel for Old Kent may reasonably deem necessary or
desirable. Any certificates or legal opinions upon which Warner, Norcross &
Judd may rely shall also be addressed to EdgeMark and EdgeMark shall be entitled
to rely on them. As to each matter with respect to which Warner, Norcross & Judd
relies upon a legal opinion rendered by other counsel, Warner, Norcross & Judd
shall state that Warner, Norcross & Judd has no knowledge of any fact or
circumstance that would render such other counsel's opinion incorrect or
misleading.
7.3 Required Approvals. EdgeMark or Old Kent shall have received:
7.3.1 Regulatory Approvals. 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 EdgeMark and Old
Kent of their respective obligations under this Plan of Merger and the
consummation of the Merger.
7.3.2 EdgeMark Stockholders. The requisite approval of the stockholders of
EdgeMark of this Plan of Merger and the Merger.
7.3.3 Sole Stockholder. Evidence reasonably satisfactory to EdgeMark of the
requisite approval of the sole stockholder of OKFC Subsidiary of this Plan of
Merger and the Merger.
7.4 Order, Decree, Etc. Neither Old Kent nor EdgeMark shall be subject
to any applicable order, decree, or injunction of a court or agency of
competent jurisdiction which enjoins or prohibits the consummation of the
Merger.
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7.5 Proceedings. There shall not be any action, suit, proceeding, claim,
arbitration, or investigation pending or threatened: (i) against or relating
to Old Kent or its subsidiaries or their properties or business which may result
in any liability to Old Kent or its subsidiaries which could have a material
adverse effect on the financial condition, net income, business, properties,
operations, or prospects of Old Kent and its subsidiaries on a consolidated
basis; or (ii) which challenges the Merger or this Plan of Merger.
7.6 Tax Matters. EdgeMark shall have received an opinion of counsel for
Old Kent, reasonably satisfactory in form and substance to EdgeMark's counsel,
substantially to the effect that:
7.6.1 No gain or loss will be recognized by the stockholders of EdgeMark who
receive shares of Old Kent Common Stock or OKFC Preferred Stock in exchange for
all of their shares of EdgeMark Common Stock or EdgeMark Preferred Stock, except
to the extent of any cash received in lieu of a fractional share of Old Kent
Common Stock.
7.6.2 The basis of Old Kent Common Stock or OKFC Preferred Stock to be
received by stockholders of EdgeMark will, in each instance, be the same as
the basis of the respective shares of EdgeMark Common Stock or EdgeMark
Preferred Stock surrendered in exchange therefor.
7.6.3 The holding period of the Old Kent Common Stock or OKFC Preferred Stock
received by stockholders of EdgeMark will, in each instance, include the period
during which the EdgeMark Common Stock or EdgeMark Preferred Stock surrendered
in exchange therefor was held, provided that the EdgeMark Common Stock or
EdgeMark Preferred Stock was, in each instance, held as a capital asset in the
hands of the stockholder of EdgeMark at the Effective Time of the Merger.
7.6.4 No income will be recognized by the holders of options to purchase
shares of EdgeMark Common Stock by reason of the amendment of the terms of such
options pursuant to Section 5.7 (Stock Options), provided that such amendment
shall have been executed in a manner recommended by counsel to Old Kent.
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. EdgeMark shall have received opinions from Donaldson,
Lufkin & Jenrette Securities Corporation or another financial expert reasonably
acceptable to EdgeMark dated no earlier than the date the Prospectus and Proxy
Statement is mailed to EdgeMark's stockholders, to the effect that the terms of
the Merger are fair to EdgeMark's stockholders from a financial point of view as
of that date and such opinion or opinions shall not have been subsequently
withdrawn.
7.9 Upset Price. The two conditions described in Section 1.8.7 (Closing
Conditions) with respect to the Upset Limit and the Market Value Decline shall
not then both exist.
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ARTICLE VIII
ABANDONMENT OF MERGER
This Plan of Merger may be terminated and the Merger abandoned at any
time prior to the Effective Time of the Merger (notwithstanding that approval
of this Plan of Merger by the stockholders of EdgeMark may have previously been
obtained) as follows:
8.1 Mutual Abandonment Prior to Effective Time of the Merger. This Plan
of Merger may be terminated and the Merger abandoned by mutual consent of the
Boards of Directors, or duly authorized committees thereof, of Old Kent and
EdgeMark.
8.2 Old Kent's Rights to Terminate. This Plan of Merger may be terminated
and the Merger abandoned by the Board of Directors, or a duly authorized
committee thereof, of Old Kent under any of the following circumstances:
8.2.1 EdgeMark Disclosure Statement; Preclosing Investigation, Etc. Old Kent
shall have reasonably determined that:
(a) Any exception to EdgeMark's representations and warranties or any other
information set forth in the EdgeMark Disclosure Statement is unacceptable to
Old Kent;
(b) Based upon Old Kent's preclosing investigation of EdgeMark, any set of
facts or circumstances materially adverse to the financial condition, net
income, business, properties, operations, or prospects of EdgeMark or EdgeMark's
Subsidiaries; or
(c) EdgeMark or EdgeMark's Subsidiaries are exposed to risks or the Merger
would expose Old Kent to risks that in the reasonable judgment of Old Kent are
not acceptable economic and business risks;
provided that Old Kent notifies EdgeMark of such abandonment and termination
not later than both the passage of (i) 21 days after Old Kent receives the
EdgeMark Disclosure Statement, and (ii) 30 days after the date of the execution
of this Plan of Merger.
8.2.2 Breach of Warranty. One or more of the representations and warranties
made by EdgeMark in this Plan of Merger shall have been discovered to be or to
have become untrue and the cumulative effect of all such untrue representations
and warranties is material relative to the business, income, or financial
condition of EdgeMark and EdgeMark's Subsidiaries on a consolidated basis.
8.2.3 Breach of Covenant. EdgeMark shall have committed one or more
breaches of any provision of this Plan of Merger which would in the aggregate
be material; provided, that, if such breach or breaches can be cured, Old Kent
shall have given EdgeMark specific notice of the breach or breaches in writing
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and EdgeMark shall have not cured such breach or breaches to the reasonable
satisfaction of Old Kent within 30 days of receipt of such notice.
8.2.4 Upset Date. Despite all reasonable efforts by Old Kent to cause the
Merger to become effective, the Merger has not yet become effective on or before
July 31, 1994, or, in any event, the Merger has not yet become effective on or
before September 30, 1994.
8.2.5 Injunction. A final unappealable injunction or other judgment
shall have been issued by a court of competent jurisdiction restraining or
prohibiting consummation of the Merger.
8.2.6 No Stockholder Approval. The stockholders of EdgeMark have failed to
ultimately adopt this Plan of Merger at an annual or special meeting or
adjournments thereof, called and held for that purpose, and such meeting has
been finally adjourned.
8.2.7 No Lender Approval. At any time more than 30 days after the execution
of this Plan of Merger if the holders of EdgeMark's short-term notes have not
then provided assurances, reasonably acceptable to Old Kent, that they will
approve the Merger or have withdrawn or conditioned that approval in a manner
unacceptable to Old Kent.
8.2.8 No Preferred Stockholder Approval. At any time more than 30 days after
the execution of this Plan of Merger if the holders of EdgeMark Preferred Stock
have not then provided assurances, reasonably acceptable to Old Kent, that they
will approve the Merger.
8.2.9 No Regulatory Approval. The Federal Reserve Board or its delegate, the
State of Illinois, or the State of Michigan, shall have refused to approve the
Merger.
8.2.10 Adverse Change. There has occurred any change from that which existed
on December 31, 1992, in the financial condition of EdgeMark or EdgeMark's
Subsidiaries which is materially adverse to the business, income, or
financial condition of EdgeMark and EdgeMark's Subsidiaries on a consolidated
basis.
8.2.11 Affiliate Agreement. EdgeMark fails to obtain and deliver to Old Kent
within 7 days from the date of the execution of this Plan of Merger an affiliate
agreement, substantially in the same form attached as Exhibit A, duly authorized
and executed by any and all affiliates of EdgeMark named in that agreement who
have not previously signed an affiliate agreement.
8.2.12 Environmental Conditions. If any environmental conditions are found,
suspected, or indicated by the environmental assessments obtained pursuant to
the investigation under Section 5.10 (Environmental Investigation) which are
contrary to EdgeMark's representations and warranties set forth in Section 3.19
(Environmental Matters), without regard to exceptions contained in EdgeMark
Disclosure Statement, and the parties are unable to agree upon a course of
action for further investigation and remediation of an environmental condition
or issue raised by an environmental assessment and/or a mutually acceptable
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modification to this Plan of Merger, and the condition or issue is not one for
which it can be determined to a reasonable degree of certainty that the risk and
expense to which Old Kent and its subsidiaries would be subject as owner of the
property involved can be quantified and limited to an immaterial amount;
provided, that Old Kent gives EdgeMark 5 days' written notice of its intent to
terminate this Plan of Merger pursuant to this Section 8.2.12.
8.3 EdgeMark's Rights to Terminate. This Plan of Merger may be terminated
and the Merger abandoned by the Board of Directors, or a duly authorized
committee thereof, of EdgeMark under any of the following circumstances:
8.3.1 Breach of Warranty. One or more of the representations and warranties
made by Old Kent in this Plan of Merger shall have been discovered to be or to
have become untrue and the cumulative effect of all such untrue representations
and warranties is material to the business, income, or financial condition of
Old Kent and its subsidiaries on a consolidated basis.
8.3.2 Breach of Covenant. Old Kent shall have committed one or more
breaches of any provision of this Plan of Merger which would in the aggregate
be material; provided, that, if such breach or breaches can be cured, EdgeMark
shall have given Old Kent specific notice of the breach or breaches in writing
and Old Kent shall have not cured such breach or breaches to the reasonable
satisfaction of EdgeMark within 30 days of receipt of such notice.
8.3.3 Upset Date. Despite all reasonable efforts by EdgeMark to cause the
Merger to become effective, the Merger has not yet become effective on or before
July 31, 1994, or, in any event, the Merger has not yet become effective on or
before September 30, 1994.
8.3.4 Injunction. A final unappealable injunction or other judgment
shall have been issued by a court of competent jurisdiction restraining or
prohibiting consummation of the Merger.
8.3.5 No Stockholder Approval. The stockholders of EdgeMark have failed to
ultimately adopt this Plan of Merger at an annual or special meeting or
adjournments thereof, called and held for that purpose at which 75% of the
stockholders are represented in person or by proxy, and such meeting has been
finally adjourned.
8.3.6 No Regulatory Approval. The Federal Reserve Board or its delegate, the
State of Illinois, or the State of Michigan, shall have refused to approve the
Merger; provided, that Old Kent shall have first had the opportunity to initiate
and fully pursue its rights to appeal from, or seek judicial review of, any such
refusal. In the event of such appeal or review, and if such appeal or review
results in a substantial affirmance of such refusal, then for purposes of this
Section 8.3.6 such refusal shall be deemed not to have been made until the
termination of such appeal or review.
8.3.7 Adverse Change. There has occurred any change from that which
existed on December 31, 1992, in the financial condition of Old Kent which is
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materially adverse to the business, income, or financial condition of Old Kent
on a consolidated basis.
8.3.8 Old Kent Disclosure Statement. The cumulative effect of any exceptions
to Old Kent's representations and warranties or any other information set forth
in the Old Kent Disclosure Statement shall be materially adverse to the
business, financial condition, or income of Old Kent and its subsidiaries on a
consolidated basis; provided that EdgeMark notifies Old Kent of such abandonment
and termination not later than both the passage of (i) 21 days after EdgeMark
receives the Old Kent Disclosure Statement, and (ii) 30 days after the date of
the execution of this Plan of Merger.
ARTICLE IX
AMENDMENT AND WAIVER
9.1 Amendment. Subject to applicable law, this Plan of Merger may be
amended, modified, or supplemented by, and only by, written agreement of Old
Kent and EdgeMark, or by the respective officers thereunto duly authorized, at
any time prior to the Effective Time of the Merger; provided, however, that,
after the adoption of this Plan of Merger by the stockholders of EdgeMark, no
such amendment, modification, or supplement shall alter or change the amount of
consideration to be received in exchange for or on conversion of the shares of
EdgeMark Common Stock.
9.2 Waiver. Any of the terms or conditions of this Plan of Merger may
be waived at any time by whichever of the parties is, or the shareholders or
stockholders (as the case may be) of which are, entitled to the benefit
thereof, by action taken by the board of directors of such party, or a duly
authorized committee thereof. The failure of any party at any time or times to
require performance of any provision hereof shall in no manner affect such
party's right at a later time to enforce the same. 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 waiver of any other
condition or of the breach of any other term, covenant, representation, or
warranty.
9.3 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 EdgeMark, EdgeMark's
Subsidiaries 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.
A-57
ARTICLE X
MISCELLANEOUS
10.1 Termination Fee. In recognition of the efforts, expenses, other
opportunities foregone by Old Kent while pursuing the Merger, and
unascertainable losses that may be incurred by Old Kent in the event that the
Merger is not consummated, and in recognition of Old Kent's potential role in
attracting the interest of Unaffiliated Persons, as defined below, the parties
agree that Old Kent shall, subject to the terms and conditions set forth in
this Section 10.1, be entitled to receive a "Termination Fee" in the event of a
Business Combination by an Unaffiliated Person. For the purposes of this Plan
of Merger an "Unaffiliated Person" shall mean any individual, corporation,
partnership, entity, or "group," as defined in Section 13(d)(3) of the
Securities Exchange Act and the regulations promulgated thereunder, other than
Old Kent, Old Kent's subsidiaries and affiliates, and their respective
directors, officers, employees, representatives, and agents. EdgeMark and Old
Kent agree that the Termination Fee is reasonable and just compensation under
such circumstances.
10.1.1 Definitions. For purposes of this Plan of Merger:
(a) "Old Kent Merger Price." The "Old Kent Merger Price" shall mean $42.79
per share as adjusted as provided in this subsection. In the event of any
increase in the number of shares of EdgeMark Common Stock outstanding
which occurs for any reason whatsoever, other than as a result of the exercise
of EdgeMark stock options identified in Section 5.7 (Stock Options), and
regardless of whether any consideration is received by EdgeMark for such
additional shares, then the Old Kent Merger Price shall be that price per share
determined by multiplying the Old Kent Merger Price by a fraction (1) the
numerator of which shall be 1,448,939 (the total number of shares of EdgeMark
Common Stock outstanding as of the date of this Plan of Merger), and (2) the
denominator of which shall be the total number of shares of EdgeMark Common
Stock outstanding immediately after such increase, excluding not more than
130,802 shares, if any, issued upon exercise of EdgeMark stock options
identified in Section 5.7.
(b) "Acquisition Price." The "Acquisition Price" per share of EdgeMark Common
Stock shall mean (i) in the event of a merger or consolidation, the market value
per share of consideration to be received by holders of EdgeMark Common Stock in
the transaction, determined as of the effective time of such transaction; (ii)
in the event of a tender offer, the price per share paid to holders of EdgeMark
Common Stock at the conclusion of such offer; (iii) in the event of an exchange
offer, the market value per share received by holders of EdgeMark Common Stock
in the transaction; or (iv) in the event of any other form of Business
Combination, the average price per share at which EdgeMark Common Stock was
acquired by the party making the Business Combination between the date of this
Plan of Merger and the date on which the Termination Fee is paid.
(c) "Termination Fee." The "Termination Fee" shall be the greater of (i)
$1,000,000, or (ii) an amount which is equal to 15 percent of the excess,
A-58
if any, of the Acquisition Price of EdgeMark Common Stock over the Old Kent
Merger Price, multiplied by the number of shares of EdgeMark Common Stock
outstanding immediately prior to the Business Combination.
10.1.2 Rights to the Termination Fee. If while this Plan of Merger is in
effect (i) any Unaffiliated Person directly or indirectly, or acting through one
or more intermediaries acquires Control (calculated using 50 percent) of
EdgeMark or its successor by merger or consolidation or acquires 50 percent or
more of the consolidated assets of EdgeMark and Edgemark's Subsidiaries, or (ii)
EdgeMark solicits, invites, negotiates, discusses, or enters into an agreement
with an Unaffiliated Person to acquire such Control or such assets or publicly
announces an intention to do so, and within one year of the date of such
solicitation, invitation, negotiation, discussion, agreement or announcement
(whether or nor this Plan of Merger is then in effect) the Unaffiliated Person
acquires such Control or such assets, then Old Kent shall be paid the
Termination Fee in the manner provided in Section 10.1.3.
10.1.3 Manner of Payment. The Termination Fee shall be paid to Old Kent by
wire transfer or by cashiers check on immediately available funds. Old
Kent shall be paid the Termination Fee:
(a) In the event of a merger, consolidation, tender offer, or exchange offer,
at or after the consummation of the transaction upon Old Kent's written demand;
or
(b) In any other case, upon Old Kent's written demand, after Old Kent becomes
entitled to the Termination Fee.
10.1.4 Failure of a Condition Precedent. Old Kent shall not be entitled to
receive the Termination Fee if:
(a) This Plan of Merger is terminated and the Merger is abandoned by mutual
consent of the parties.
(b) This Plan of Merger is terminated and the Merger is abandoned by EdgeMark
pursuant to Sections 8.3.1 (Breach of Warranty), 8.3.2 (Breach of Covenant),
8.3.4 (Injunction), 8.3.6 (No Regulatory Approval), 8.3.7 (Adverse Change).
(c) This Plan of Merger is terminated and the Merger is abandoned by EdgeMark
pursuant to Section 8.3.3 (Upset Date) if Old Kent has failed to satisfy or
offer satisfaction of the conditions precedent provided in Sections 7.1 (Renewal
of Representations and Warranties, etc.), 7.2 (Opinion of Legal Counsel), 7.3.1
(Regulatory Approvals), 7.5 (Proceedings-not including 7.5(ii)), 7.6 (Tax
Matters) (provided, however, that EdgeMark has supplied all necessary
cooperation, information, representations, and consents, on its part), 7.7
(Registration Statement) (provided, however, that EdgeMark has supplied all
necessary cooperation, information, and consents, on its part), or 7.9 (Upset
Price), at or as of the time of Closing convened pursuant to Section 1.2 (The
Closing) of this Plan of Merger.
A-59
(d) This Plan of Merger is terminated and the Merger is abandoned by Old Kent
pursuant to Section 8.2.1 (EdgeMark Disclosure Statement; Preclosing
Investigation, Etc.) or Section 8.2.12 (Environmental Conditions).
10.2 Liability After Termination. In the event the Merger is not
consummated and this Plan of Merger is terminated and the Merger is abandoned
pursuant to Article VIII:
10.2.1 Continuing Obligations. The obligations of Old Kent and EdgeMark
under Sections 5.9.4 (Confidentiality), 5.9.5 (Return of Materials) and 10.1
(Termination Fee) shall continue.
10.2.2 Liability. Neither Old Kent nor EdgeMark shall incur any liability
whatsoever under, or pursuant to, this Plan of Merger except for damages for
breach of Sections 4.9 (Competing Proposals), 5.9.4 (Confidentiality) or 5.9.5
(Return of Materials) and except for payment of the fee, if any, provided under
Section 10.1 (Termination Fee).
10.2.3 Damages for Breach. Neither Old Kent nor EdgeMark shall have
any liability for damages or otherwise for breach of a representation and
warranty unless such breach was knowing or intentional.
10.2.4 Termination Fee. If Old Kent is entitled to be paid, and is
paid, the Termination Fee, such fee shall be in lieu of all other remedies Old
Kent may have under this Plan of Merger, except for damages for breach of
Sections 5.9.4 (Confidentiality) and 5.9.5 (Return of Materials). If there has
been a breach of Section 4.9 (Competing Proposals), Old Kent shall be entitled
to damages for breach of that Section or the Termination Fee, whichever is
greater, but not both.
10.3 Termination of Representations and Warranties. All representations and
warranties contained in this Plan of Merger shall expire with, and be terminated
and extinguished by either (i) the consummation of the Merger at the Effective
Time of the Merger, or (ii) the termination of this Plan of Merger at the time
of termination.
10.4 Expenses. Except as otherwise provided in this Plan of Merger,
EdgeMark 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 printing and 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 EdgeMark.
10.5 Notices. Except as otherwise provided herein, 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 if delivered or mailed by
registered or certified mail, postage prepaid, as follows:
A-60
If to Old Kent:
Old Kent Financial Corporation Warner, Norcross & Judd
Attention: B. P. Sherwood III, Attention: Gordon R. Lewis
Vice Chairman and Treasurer 900 Old Kent Building
One Vandenberg Center 111 Lyon Street, N.W.
Grand Rapids, Michigan 49503 Grand Rapids, Michigan 49503
If to EdgeMark:
EdgeMark Financial Corporation Pope, Ballard, Shepard & Fowle,
Attention: Charles A. Bruning, Ltd.
President and Chief Executive Attention: Timothy M. Sullivan
Officer 69 West Washington Street
Merchandise Mart Plaza Chicago, Illinois 60602
Suite 2400
Chicago, Illinois 60654
10.6 Governing Law. This Plan of Merger shall be governed, construed,
and enforced in accordance with the laws of the State of Delaware.
10.7 Method of Consent or Waiver. Any consent hereunder or any waiver
of conditions or covenants as may be herein provided for, subject to all of the
other requirements contained in this Plan of Merger, shall be evidenced in
writing, properly executed by the Chairman, the President, or one of the Vice
Presidents of the party so electing hereunder, and such documents shall be
attested to by the Secretary or an Assistant Secretary of the party so elect-
ing under this Plan of Merger.
10.8 Entire Agreement. Except as otherwise expressly provided herein,
this Plan of Merger and the related agreements referred to in this Plan of
Merger contains the entire agreement between the parties with respect to the
transactions contemplated hereunder, and such agreements supersede all prior
arrangements or understandings with respect thereto, written or oral. The
parties have not relied upon any statements or representations pertaining to
the other, whether oral or written, other than as provided for in this Plan of
Merger, the EdgeMark Disclosure Statement, or the Old Kent Disclosure
Statement. The terms and conditions of this Plan of Merger shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors. Nothing in this Plan of Merger expressed or implied, is intended
to confer upon any person other than the parties hereto any rights, remedies,
obligations, or liabilities under or by reason of this Plan of Merger.
10.9 No Assignment. None of the parties may assign any of its rights or
obligations under this Plan of Merger to any other person.
10.10 Counterparts. This Plan of Merger may be executed in one or more
counterparts, each of which shall constitute one and the same instrument.
10.11 Further Assurances; Privileges. Any party to this Plan of Merger
shall, at the request of another party, execute and deliver such additional
documents and instruments and take such other actions as may be reasonably
A-61
requested to carry out the terms and provisions of this Plan of Merger. Each
party shall use reasonable efforts to preserve for itself and each other party
each available legal privilege with respect to confidentiality of their
negotiations and related communications including the attorney-client
privilege.
10.12 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.
10.13 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, 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 hereto have duly executed
this Plan of Merger as of the date first written above.
OLD KENT FINANCIAL CORPORATION
By /s/ B. P. Sherwood, III
B. P. Sherwood, III, Vice Chairman and
Treasurer
Attest:
By /s/ Martin J. Allen, Jr.
Martin J. Allen, Jr., Senior
Vice President and Secretary
EDGEMARK FINANCIAL CORPORATION
By /s/ Charles A. Bruning, President
Charles A. Bruning, President
A-62
Attest:
By /s/ Jean E. Marshall-Dennis
Jean E. Marshall-Dennis
Senior Vice President and Secretary
OLD KENT - ILLINOIS, INC.
By /s/ Robert L. Sadler
Robert L. Sadler,
President, Chief
Executive Officer, and Secretary
Attest:
By /s/ B. P. Sherwood, III
B. P. Sherwood, III, Vice President
and Treasurer
A-63
APPENDIX B
EDGEMARK FINANCIAL CORPORATION
ANNUAL REPORT TO SHAREHOLDERS
FOR YEAR ENDED DECEMBER 31, 1992
Appendix B is a complete facsimile of EdgeMark Financial Corporation's Annual
Report to Shareholders for the year ended December 31, 1992, as previously
distributed to shareholders. The Annual Report to Shareholders included in this
Appendix is not a part of the Prospectus except as expressly incorporated by
reference in the Prospectus.
Appendix B
EdgeMark
Financial
Corporation
1992
Annual
Report
Established in 1979, EdgeMark Financial
Corporation is a $516 million, multi-bank
holding company that conducts domestic
business through its five wholly owned bank
subsidiaries. The Corporation's mission is to
be a niche player in each of its well-defined
Chicagoland markets, and to provide its
customers with quality banking services.
B-2
To Our Stockholders
For the Corporation, 1992 was, in many regards, a year of re-
structuring and repositioning. In the wake of a sluggish economy
and continued changes in the banking industry, your Board of Di-
rectors decided to take certain restructuring actions and sub-
stantial write-offs.
IN 1992, WE MADE SIGNIFICANT DECISIONS THAT WILL POSITION THE
CORPORATION FOR FUTURE GROWTH AND PROFITABILITY.
They have resulted in a loss for 1992 of $2,724,369 or $2.41 per
Common Share. These decisions will position the Corporation for
future growth and profitability. For example, as a result of the
restructuring charges, we expect an annual savings in operating
costs of approximately $850,000 per year. These actions primar-
ily involved one-time charges relating to our Merchandise
National Bank subsidiary. EdgeMark's four other subsidiary banks
reported solid performances for 1992.
The problems at Merchandise National Bank stemmed from weak eco-
nomic conditions that led to a deterioration of the Bank's loan
portfolio. Many of the Bank's customers rely on the consumer-
driven apparel and furniture industries or were involved in real
estate development in the Bank's River North area, where commer-
cial office vacancy rates are dramatically high. These sectors
of the economy have been slow to recover, impacting the perfor-
mance of Merchandise National Bank.
To increase Merchandise National Bank's profitability, we dramat-
ically lowered fixed costs by consolidating the Bank's NBC Tower
facility with its main office in the Merchandise Mart, as well as
beginning the consolidation of backroom operations for Merchan-
dise National Bank. This restructuring resulted in a one-time
charge of $2,389,707 to cover expenses for consolidating the
facilities and to absorb costs associated with the reorganization
of certain leased space at the Merchandise Mart.
Specifically, we incurred the following charges as part of our
restructuring:
$1,211,575 associated with the closing of Merchandise National
Bank's NBC Tower facility. Two of the Bank's CASH STATION and
PLUS SYSTEM automated teller machines remain at the NBC Tower.
$1,178,132 associated with a lease buyout and writedowns for
backroom consolidation at Merchandise National Bank's Mart
headquarters.
B-3
Also, miscellaneous charges of $572,355 were incurred, the major-
ity of which relate to remodeling expenses at Merchandise
National's main banking facility. These charges were not part of
the restructuring charge mentioned above.
In addition to the restructuring charge, we decided to take
write-downs on certain non-performing loans, the majority of
which were related to Merchandise National Bank's pre-acquisition
loans and other problem loans.
During 1992, the Corporation provided $5,485,593 as an addition
to the Allowance for Loan Losses against which we took net
charge-offs of $4,909,070, as compared to a provision of
$2,661,681 and net charge-offs of $1,385,653 in 1991. At year-
end 1992, the Allowance for Loan Losses after these charges was
1.48% of net loans compared to 1.35% of the year earlier. At the
same time the ratio of nonperforming to net loans decreased to
1.25% at December 31, 1992, from 1.37% at December 31, 1991. We
believe that the Allowance for Loan Losses at December 31, 1992,
is adequate in relation to the present risk in the loan
portfolio.
EDGEMARK FINANCIAL CORPORATION'S FIVE BANKING SUBSIDIARIES REMAIN
WELL CAPITALIZED AND EXCEED REGULATORY GUIDELINES.
After these losses and restructuring charges, EdgeMark Financial
Corporation's five banking subsidiaries remain well capitalized
and exceed regulatory guidelines for Tier I Capital, Total Risk-
Based Capital and Capital Leverage Ratios.
Other 1992 Developments
During 1992, net interest income reached a new record high of
$22,235,069, an increase of 10.21% compared to 1991. Also, the
Corporation's mortgage brokerage and indirect auto dealer divi-
sions reported strong performance and contributed significantly
to net interest income and other income. Other income and fees
remained at a near record level of $6,924,903, essentially un-
change from the record level of 1991.
We constantly seek new ways to make it easier for our customers
to bank with us. This past year we inaugurated and implemented
"The EdgeMark Connection," a totally automated telephone banking
network and system. Now customers can do their banking by ac-
cessing accounts, rate information and obtain balance data 24
hours a day, 7 days a week.
B-4
In a move that will improve the liquidity of our shares and in-
crease visibility among investors and within the investment com-
munity, we arranged for EdgeMark's stock to be traded on the
National Market System of the National Association of Securities
Dealers Automated Quotation System ("NASDAQ"), under the ticker
symbol "EDGE."
Earlier this year, we announced the formation of our Stockholder
Capital Program, designed to increase the liquidity of our stock
and to build value in the EdgeMark franchise. We are now pleased
to report that all three phases of the program have been com-
pleted, which include such events as:
Registering the Corporation's Employee Benefit and Income Plan,
to allow employees to invest in EdgeMark stock through the
Corporation's profit-sharing plan.
The conversion of the EdgeMark Voting Trust Certificates to Com-
mon Stock Certificates at December 31, 1992, which we believe
will provide additional liquidity for the stock. More than
60.00% of the Corporation's stock was held in the EdgeMark Voting
Trust.
Retaining a separate registrar and transfer agent, Harris Trust
and Savings Bank.
The development of the Dividend Reinvestment and Stock Purchase
Program.
The EdgeMark Common Stock is now traded on The NASDAQ Small-Cap
Market under the symbol EDGE.
Our Strategy
Despite this year's setbacks resulting from our restructuring
activities and the absorption of significant loan losses, we are
a strong, solid, and safe banking group. The Corporation's
strategy is focused on emphasizing our strength as a community
bank holding company by marketing products and services to key
consumer segments and market niches in each geographical market.
To position ourselves for short- and long-term growth and profit-
ability, we will expand our community retail banking efforts,
while continuing to focus on consumer financial and investment
portfolio products. In addition, we plan to expand our success-
ful mortgage brokerage business in 1993. We have not yet taken
full advantage of these areas, and we feel they provide substan-
tial growth opportunity.
B-5
WE TAKE PRIDE IN THE FACT THAT WE INVEST HEAVILY IN EACH OF THE
COMMUNITIES WE SERVE; IN FACT, WE BUILD THOSE EFFORTS INTO THE
CORPORATION'S ANNUAL COMMUNITY REINVESTMENT AND OPERATING PLAN.
At the core of this business strategy is our commitment to pro-
vide the best possible banking relationship to our customers. To
us, that commitment goes beyond a day-to-day business relation-
ship. We take pride in the fact that we invest heavily in each
of the communities we serve; in fact, we build those efforts into
the Corporation's annual community reinvestment and operating
plan.
For many residents in the communities we serve, this means having
special programs available that offer competitive rates for cus-
tomers when purchasing a home or financing an automobile.
Whatever the program, we view these initiatives as viable oppor-
tunities to forge a solid position within these communities.
Positioned For Growth
As we look forward, we are confident that the needed reposition-
ing and restructuring is behind us. In addition to realizing
approximately $850,000 in annual cost savings, we are now provid-
ing more efficient service to customers as we realize the econo-
mies of scale resulting from these changes and improvements.
Also the steady upturn in the economy should help us revitalize
our community bank lending programs.
Banking is an industry dominated by competition, compliance, and
regulation. Knowing that, we are able to anticipate challenges
and meet them head on. We have the personnel and resources to
identify change and actively prepare for it. We believe our
strategy will enhance our ability to effectively meet and manage
specific challenges, while positioning the Corporation for fur-
ther growth.
We remain focused on bringing value to stockholders and providing
competitive products and services to our customers. As we strive
to meet the diverse needs of customers, we remain committed to
maintaining the quality of our underlying assets, diligently
managing expenses, and aggressively growing income and stock-
holder value. Now more than ever, we stand by our reputation as
a well-managed company with a strong capital base and a group of
well-situated and financially sound subsidiary banks.
We appreciate your confidence and continued support, and we look
forward to a productive 1993.
Charles A. Bruning Roger A. Anderson
President and Chairman of the Board
Chief Executive Officer
B-6
<TABLE>
BANK SUBSIDIARY FINANCIAL HIGHLIGHTS
<CAPTION>
Merchandise National Bank
(dollar amounts in thousands, unaudited)
1992 1991 1990 1989 1988
<S> <C> <C> <C> <C> <C>
Operating Performance:
Net Income (Loss) $ (4,470) $ 416 $ 1,143 $ 1,664 $ (874)
Return on Average Assets (3.20)% 0.28% 0.83% 1.15% (0.62)%
Return on Average Equity (49.40) 4.43 12.09 17.79 (9.18)
Balance Sheet (at end of period):
Assets $132,820 $143,243 $144,366 $137,043 $158,169
Net Loans 92,288 97,396 93,099 85,457 93,083
Deposits 122,823 132,740 127,339 122,459 143,918
Stockholder's Equity 8,363 9,441 9,317 9,143 8,488
Edgewood Bank
(dollar amounts in thousands, unaudited)
1992 1991 1990 1989 1988
Operating Performance:
Net Income $ 1,308 $ 2,062 $ 1,367 $ 1,391 $ 1,279
Return on Average Assets 1.02% 1.66% 1.17% 1.29% 1.22%
Return on Average Equity 13.85 24.27 16.90 17.97 18.08
Balance Sheet (at end of period):
Assets $129,032 $128,237 $117,008 $113,107 $111,622
Net Loans 88,717 80,957 78,373 73,663 69,336
Deposits 118,779 118,867 108,285 104,587 103,564
Stockholder's Equity 8,910 8,760 8,136 7,857 7,326
EdgeMark Bank Lombard
(dollar amounts in thousands, unaudited)
1992 1991 1990 1989 1988
Operating Performance:
Net Income $ 1,592 $ 1,169 $ 985 $ 891 $ 725
Return on Average Assets 1.58% 1.28% 1.19% 1.16% 1.01%
Return on Average Equity 25.86 20.58 17.44 16.53 14.62
B-7
Balance Sheet (at end of period):
Assets $104,670 $ 98,603 $ 85,119 $ 80,352 $ 75,547
Net Loans 74,089 70,989 58,565 53,433 53,725
Deposits 98,073 92,187 78,848 74,443 70,004
Stockholder's Equity 5,922 5,862 5,689 5,495 5,149
First National Bank of Lockport
(dollar amounts in thousands, unaudited)
1992 1991 1990 1989 1988
Operating Performance:
Net Income $ 1,529 $ 1,252 $ 1,411 $ 1,233 $ 1,073
Return on Average Assets 1.49% 1.32% 1.57% 1.40% 1.28%
Return on Average Equity 20.87 18.29 20.82 19.61 18.60
Balance Sheet (at end of
period):
Assets $102,325 $ 92,658 $ 90,345 $ 87,747 $ 86,161
Net Loans 55,320 55,630 51,586 51,497 46,674
Deposits 94,242 84,206 81,295 79,816 79,048
Stockholder's Equity 6,825 6,984 6,787 6,482 5,949
EdgeMark Bank Rosemont
(dollar amounts in thousands, unaudited)
1992 1991 1990 1989 1988
Operating Performance:
Net Income (Loss) $ 312 $ 195 $ 114 $ (55)
Return on Average Assets 0.94% 0.66% 0.61% (0.83)%
Return on Average Equity 7.49 4.73 2.86 (1.39)
Balance Sheet (at end of period):
Assets $ 30,206 $ 36,249 $ 22,020 $ 11,105
Net Loans 23,639 20,912 12,023 5,981
Deposits 26,092 29,228 17,831 7,105
Stockholder's Equity 3,963 4,050 4,076 3,962
NOTE: EdgeMark Bank Rosemont opened on January 13, 1989.
</TABLE>
B-8
BOARD OF DIRECTORS AND SUBSIDIARY BANK PRESIDENTS
EdgeMark Financial
Corporation
Board of Directors
(from left to right)
Jerry G. Glashagel
Senior Partner,
Global Edge, Inc.
Charles A. Bruning
President & Chief
Executive Officer,
EdgeMark Financial
Corporation
Roger A. Anderson
Chairman of the Board,
EdgeMark Financial
Corporation;
President,
Bellevue Builders, Inc.
Wayne L. Haraldson
Chief Executive Officer,
Scientific Metal Treating
Company
Robert A. Podesta
Vice Chairman,
Network Financial
Services, Inc.
Stephen J. Bloom
Vice President,
Corporate Sales,
Philip Morris USA
Eugene J. Wozniak, Sr.
President,
Gencar, Inc.
William H. Pokorny, Sr.
Attorney,
Pokorny & Associates, Ltd.
Derek N. G. Metcalf
Chairman of the Board,
Athena Industries, Inc.
B-9
EdgeMark Financial
Corporation Subsidiary
Bank Presidents
(from left to right)
Charles A. Bruning
President & Chief
Executive Officer,
Merchandise National Bank
Robert J. Nemec, Jr.
President & Chief
Executive Officer,
EdgeMark Bank Rosemont
Robert C. Iorii, Sr.
President & Chief
Executive Officer,
EdgeMark Bank Lombard
Joseph J. Wallace III
President & Chief
Executive Officer,
First National Bank
of Lockport
Kenneth C. McPherson
President & Chief
Executive Officer,
Edgewood Bank
B-10
INDEX TO FINANCIAL REVIEW
Page
Five-Year Summary of Selected Financial Data
Selected Quarterly Financial Data
Management's Discussion and Analysis of
Financial Condition and Results of Operations
Consolidated Financial Statements:
Independent Auditors' Report
Consolidated Balance Sheets
Statements of Consolidated Earnings
Statements of Changes in Consolidated Stockholders' Equity
Statements of Consolidated Cash Flows
Notes to Consolidated Financial Statements
Directors and Officers
Corporate Information
B-11
<TABLE>
FIVE-YEAR SUMMARY OF SELECTED FINANCIAL DATA
EdgeMark Financial Corporation and Subsidiaries
<CAPTION>
For the Years Ended December 31, 1992 1991 1990 1989 1988
<S> <C> <C> <C> <C> <C>
Summary of Operations:
Total Interest Income $ 37,457,180 $ 41,615,321 $ 40,963,016 $ 40,309,110 $ 9,184,519
Total Interest Expense 15,222,111 21,439,941 22,303,022 21,653,161 4,807,208
Net Interest Income 22,235,069 20,175,380 18,659,994 18,655,949 4,377,311
Provision for Loan Losses 5,485,593 2,661,681 555,500 372,472 126,153
Net Securities Gains 488,975 2,050,533 31,114
Trading Account Securities
Losses 230,467
Restructuring Charges 2,389,707
Net Income (Loss) (2,724,369) 2,998,256 2,752,713 3,564,742 1,248,726
Per Common and Common
Equivalent Share:
Net Income (Loss) $ (2.41) $ 1.51 $ 1.24 $ 1.84 $ 3.17
Cash Dividends 0.25 0.25 0.25 0.25 0.25
Net Book Value (at end of period) 20.70 23.28 21.90 20.43 19.02
Balance Sheet Data (at end of
period):
Loans, Net of Unearned Income $338,335,233 $329,206,459 $293,604,519 $272,625,980 $264,876,860
Allowance for Loan Losses 5,022,616 4,446,093 3,170,065 4,919,852 4,894,758
Net Loans 333,312,617 324,760,366 290,434,454 267,706,128 259,982,102
Total Investment Securities 78,512,121 119,522,336 95,028,457 77,450,478 84,872,856
Trading Account Securities 23,420,587
Total Assets 516,071,198 516,943,125 475,868,168 447,710,463 455,414,841
Total Deposits 459,661,414 456,988,585 413,889,564 388,523,857 396,416,566
Short-Term Borrowings 13,870,000 14,250,000 4,575,000 2,897,000 14,548,000
Long-Term Borrowings 13,000,000 13,500,000 3,600,000
Total Stockholders' Equity 37,862,322 41,628,926 39,688,025 38,029,111 35,698,918
B-12
Selected Ratios:
Net Interest Margin 4.85% 4.56% 4.64% 4.87% 4.70%
Return on Average Assets (0.52) 0.59 0.59 0.80 1.16
Return on Average Equity (6.40) 7.42 7.05 9.67 21.54
Average Equity to Average Assets 8.15 7.99 8.42 8.32 5.39
</TABLE>
On December 30, 1988, the Corporation acquired four subsidiary banks. The
Corporation acquired, for cash, all of the stock of Merchandise National
Bank of Chicago and EdgeMark Bank Rosemont. Also, on December 30, 1988,
the Corporation increased its ownership, from 25.00% to 100.00% of the
former EdgeMark Financial Corporation and its wholly owned subsidiary,
EdgeMark Bank Lombard, and increased its ownership interest from 24.00% to
100.00% of Cosmopolitan Financial Services, Inc. and its wholly owned
subsidiary, First National Bank of Lockport, through an exchange of the
Corporation's stock.
B-13
<TABLE>
SELECTED QUARTERLY FINANCIAL DATA
EdgeMark Financial Corporation and Subsidiaries
<CAPTION>
First Second Third Fourth Entire
Quarter Quarter Quarter Quarter Year
<S> <C> <C> <C> <C> <C>
1992
Total Interest Income $ 9,719,462 $ 9,463,919 $ 9,227,627 $ 9,046,172 $37,457,180
Total Interest Expense 4,299,532 3,975,030 3,643,547 3,304,002 15,222,111
Net Interest Income 5,419,930 5,488,889 5,584,080 5,742,170 22,235,069
Provision for Loan Losses 887,750 1,011,083 767,750 2,819,010 5,485,593
Net Securities Gains (Losses) 211,514 (39,257) 316,931 (213) 488,975
Trading Account Securities
Gains (Losses) 13,949 (244,416) (230,467)
Restructuring Charges 2,389,707 2,389,707
Net Income (Loss) 670,217 103,040 758,313 (4,255,939) (2,724,369)
Cash Dividends Paid on
Preferred Stock 170,000 170,000 170,000 170,000 680,000
Accretion of Discount on
Preferred Stock 23,930 24,679 25,452 26,250 100,311
Cash Dividends Paid on
Common Stock 144,894 217,341 362,235
Net Income (Loss) Per Common and Common
Equivalent Share 0.33 (0.06) 0.38 (3.06) (2.41)
Cash Dividends Per Common Share 0.10 0.15 0.25
Book Value Per Common Share and Common
Equivalent Share at Period End 23.62 23.54 23.91 20.70
Stock Price Range of Common
Shares: (1)
High 18.00 15.00 15.00 16.00
Low 15.00 15.00 15.00 15.00
1991
Total Interest Income $10,135,155 $10,494,848 $10,542,829 $10,442,489 $41,615,321
Total Interest Expense 5,397,128 5,121,885 5,641,865 5,279,063 21,439,941
Net Interest Income 4,738,026 5,372,963 4,900,964 5,163,427 20,175,380
B-14
Provision for Loan Losses 190,501 372,923 587,001 1,511,256 2,661,681
Net Securities Gains 17,781 144,171 431,128 1,457,453 2,050,533
Net Income 588,125 625,478 483,783 1,300,870 2,998,256
Cash Dividends Paid on
Preferred Stock 190,400 170,000 170,000 170,000 700,400
Accretion of Discount on
Preferred Stock 21,152 21,814 22,498 23,203 88,667
Cash Dividends Paid on Common
Stock 144,894 217,341 362,235
Net Income Per Common and
Common Equivalent Share 0.26 0.30 0.20 0.75 1.51
Cash Dividends Per Common Share 0.10 0.15 0.25
Book Value Per Common Share and
Common Equivalent Share at
Period End 22.27 22.48 22.67 23.28
Stock Price Range of
Common Shares:(1)
High 21.00 20.00 21.00 21.00
Low 20.00 20.00 20.00 18.00
<FN>
(1) The above table sets forth the stock price range of high and low bid quotations for the periods in-
cated for the Common Stock as reported by The Chicago Corporation. These quotations represent prices
between dealers and do not include retail markups, markdowns, or commissions, and do not necessarily
represent actual transactions. Kemper Securities Group, Inc. and The Chicago Corporation act as market
makers for the Common Stock. The Common Stock currently is owned of record by 529 stockholders. The stock
is listed as "EdgeMark" on The NASDAQ Small-Cap Market and is being traded under the ticker symbol "EDGE."
</TABLE>
B-15
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
This section presents Management's Discussion and Analysis of the financial
condition and results of operation of EdgeMark Financial Corporation and
its subsidiaries (the "Corporation") for the years ended December 31, 1992,
1991, and 1990. The following discussion is presented here in order to
provide a complete understanding of the financial statements and other
financial data presented in this report. This discussion and analysis
should be read in conjunction with the Consolidated Financial Statements
and Selected Financial Data appearing elsewhere in the annual report.
Certain 1991 and 1990 information has been reclassified to conform its
presentation with the 1992 financial statements.
Analysis of the Income Statement
The following analysis summarizes the components of net income for 1992,
1991, and 1990:
<TABLE>
<CAPTION>
For the Years Ended December 31, 1992 1991 1990
<S> <C> <C> <C>
Interest Income:
Loans, Including Fees $30,189,269 $32,275,911 $31,448,969
Investment Securities 6,481,665 8,225,190 7,236,903
Trading Account Securities 132,452
Other Interest Income 653,794 1,114,220 2,277,144
Total Interest Income 37,457,180 41,615,321 40,963,016
Interest Expense:
Deposits 14,389,342 20,168,311 20,707,424
Short-Term Borrowings 832,769 709,499 194,973
Long-Term Debt and Equity Commitment
Note 562,131 1,400,625
Total Interest Expense 15,222,111 21,439,941 22,303,022
Net Interest Income 22,235,069 20,175,380 18,659,994
Provision for Loan Losses 5,485,593 2,661,681 555,500
Net Interest Income After Provision for
Loan Losses 16,749,476 17,513,699 18,104,494
Other Income 6,924,903 6,946,886 3,151,565
Other Expense 26,398,748 20,798,420 18,201,229
Income (Loss) Before Income Taxes (2,724,369) 3,662,165 3,054,830
Applicable Income Taxes 663,909 302,117
Net Income (Loss) $(2,724,369) $2,998,256 $2,752,713
Net Income (Loss) Applicable to
Common Stock $(3,504,680) $2,209,189 $1,822,859
</TABLE>
B-16
MANAGEMENT'S DISCUSSION AND ANALYSIS (CONTINUED)
The following analysis summarizes the components of net income (loss) as a
percentage of average assets for 1992, 1991 and 1990:
<TABLE>
<CAPTION>
For the Years Ended December 31, 1992 1991 1990
<S> <C> <C> <C>
Net Interest Income 4.25% 3.99% 3.93%
Provision for Loan Losses (1.05) (0.53) (0.12)
Other Income 1.32 1.37 0.68
Other Expense (5.04) (4.11) (3.83)
Income (Loss) Before Income Taxes (0.52) 0.72 0.66
Applicable Income Taxes 0.13 0.07
Net Income (Loss) (0.52)% 0.59% 0.59%
</TABLE>
Summary of 1992 Results
The Corporation recorded a net loss of $2,724,369 in 1992 compared with
1991 net income of $2,998,256. On a per share basis, the 1992 loss was
$2.41 compared to $1.51 earnings in 1991. The 1992 results reflect an
increase in the provision for loan losses of $2,823,912 and a one-time
restructuring charge of $2,389,707.
Cash dividends declared were $0.25 per share in both 1992 and 1991. In
1992, the Corporation began a dividend reinvestment and stock purchase
program.
Net Interest Income
Net interest income includes fundamental spreads on earning assets, as well
as such items as loan fees, cash interest collected on problem loans,
dividend income, and interest reversals.
Net interest income is a function of average earning assets and the net
interest margin, which are presented in the table below.
<TABLE>
<CAPTION> 1992 1991 1990
<S> <C> <C> <C>
Net Interest Income $ 22,235,069 $ 20,175,380 $ 18,659,994
Average Earning Assets 458,122,624 442,351,289 401,903,000
Net Interest Margin 4.85% 4.56% 4.64%
</TABLE>
Net interest margin measures the efficiency of the use of the Corporation's
earning assets. The net yield on average earning assets was 4.85%, 4.56%
and 4.64% in 1992, 1991 and 1990, respectively. In 1991, overall yields
exhibited the pressures of a shift to interest-bearing deposits. However,
in 1992 this shift was partially offset by a declining interest rate
environment.
B-17
MANAGEMENT'S DISCUSSION AND ANALYSIS (CONTINUED)
Net interest income is defined as the difference between interest income plus
fees on loans and interest expense on deposits and borrowed funds. Earning
assets are financed by a large base of interest-bearing funds, including retail
deposits and short-term borrowings. Assets are also funded by net noninterest-
related funds. Net noninterest-related funds consist of demand deposits, the
allowance for loan losses and stockholders' equity, reduced by noninterest-
bearing assets including cash and due from banks, premises and equipment and
other net nonearning assets. Variations in the level and mix of earning
assets, interest-bearing funds and net noninterest-related funds, and their
relative sensitivity to interest rate movements, coupled with the impact of
nonperforming loans, are the most important factors affecting net interest
income. Net interest income is the primary source of earnings and is dependent
on the levels of and rates on earning assets and interest-bearing liabilities.
Net interest income during 1992 was $22,235,069 compared to $20,175,380 in 1991
and $18,659,994 in 1990.
Net interest income reached a new high of $22,235,069 in 1992, an increase of
$2,059,689, or 10.21%, compared to 1991. The increase was a result of an
approximate increase in average earning assets of $15,771,000 offset by an
approximate increase in average interest-bearing liabilities of $11,252,000
and an increase of 0.29% in the net interest margin.
In spite of the fact that interest-bearing assets increased, total interest
income decreased $4,158,141, or 9.99%, compared to 1991. The overall average
interest income rate decreased by 1.23% to 8.18% in 1992 compared with 9.41% in
1991. Even though interest-bearing liabilities increased, interest expense
decreased $6,217,830, or 29.00%, compared to 1991 due to a decrease in the
overall average cost of funds rate of 1.78%, from 5.73% in 1991 to 3.95% in
1992.
Although earning assets did not grow significantly in 1992, there was a shift in
earning assets during the year from investment securities to loans and trading
account securities. Yield improvement was a direct result of shifting certain
assets along with newly acquired assets to loans that yield higher returns.
The Corporation currently forecasts a stable or slightly rising interest rate
environment in 1993. Accordingly, management changed its asset/liability gap
position from 81.27% negative gap in 1991 to 111.52% positive gap in 1992.
Management anticipates net interest income in 1993 will be higher than the 1992
level.
Net interest income was a record $20,175,380 in 1991, an increase of $1,515,386
or 8.13% compared to 1990. The increase was a result of an approximate increase
in average earning assets of $40,448,000 offset by an approximate increase in
interest-bearing liabilities of $35,729,000 and a slight decline of 0.08% in the
net interest margin. Even though average interest-bearing liabilities increased,
interest expense decreased $863,081, or 3.87%, compared to 1990 due to a
decrease in the overall average interest expense rate of 0.93%, from 6.66% in
1990 to 5.73% in 1991.
B-18
MANAGEMENT'S DISCUSSION AND ANALYSIS (CONTINUED)
Loans, the largest component of earning assets, accounted for the majority of
the growth, increasing $27,536,000 on the average in 1991. In anticipation of
declining interest rates in 1991, the Corporation shifted Federal funds sold and
securities with short-term maturities to securities with near-term maturities.
As short-term interest rates declined, particularly towards the end of 1991,
these positions became increasingly profitable and net interest income rose.
Provision and Allowance for Loan Losses
The allowance for loan losses is maintained at a level considered adequate to
absorb losses on existing loans that may become uncollectible based on
management's judgment of the loan collectibility and prior loan loss experience.
The allowance is based on management's formal review and takes into
consideration such factors as changes in the nature, quality and volume of the
overall loan portfolio, review of specific problem loans and current economic
conditions that may affect the borrowers' ability to pay. The allowance is
increased by provisions for loan losses, which are charged to earnings, and
reduced by charge-offs, net of recoveries.
During 1992, the Corporation provided $5,485,593 as an addition to the allowance
for loan losses, compared to $2,661,681 in 1992 and $555,500 in 1990. The
significant increase in the 1992 provision reflected management's evaluation of
a deterioration in a specific portion of the loan portfolio at Merchandise
National Bank. Additionally, Merchandise National Bank's loan portfolio had a
significant commercial real estate credit that was adversely impacted by the
sluggish economy. All of this resulted in an overall provision of $3,838,333
in 1992 compared to $1,465,000 in 1991.
Net charge-offs amounted to $4,909,070 in 1992, $1,385,653 in 1991 and
$2,305,287 in 1990. As a percentage of average loans, net charge-offs were
1.45% in 1992, compared to 0.43% in 1991 and 0.81% in 1990. The 1992 net
charge-offs were primarily attributable to the continuing charge-offs of
Merchandise National Bank's pre-acquisition and other problem loans.
When comparing 1992 to 1991, the overall ratio of the allowance for loan losses
to loans, net of unearned income increased by 0.13%. At December 31, 1992, the
allowance for loan losses was $5,022,616, or 1.48%, of net loans, compared with
$4,446,093, or 1.35%, a year earlier. Additionally, the Corporation's ratio of
nonperforming loans as a percent of net loans was 1.25% and 1.37% at December
31, 1992 and 1991, respectively. Management believes that the allowance for
loan losses at December 31, 1992, is adequate in relation to the present risk in
the loan portfolio.
Nonperforming loans include non-accrual, restructured and past due loans.
Nonaccrual loans are loans that do not accrue interest. Restructured loans
are loans that bear below-market interest rates due to the deteriorating
financial condition of the borrower. Past due loans are loans which are
delinquent greater than 90 days and still accruing interest. It is also the
Corporation's policy to include in past due loans, loans which are performing
and have matured, but are not yet renewed due to technical documentation
B-19
MANAGEMENT'S DISCUSSION AND ANALYSIS (CONTINUED)
deficiencies. At December 31, 1992, nonperforming loans were $4,231,476
representing a slight decrease of $286,552, or 6.34%, compared to nonperforming
loans of $4,518,028 at December 31, 1991.
<TABLE>
<CAPTION>
Other Income
For the Year Ended December 31, 1992 1991 1990
<S> <C> <C> <C>
Total Other Income $6,924,903 $6,946,886 $3,151,565
Service Charges on Deposit Accounts $2,455,390 $2,111,415 $1,535,404
Net Securities Gains 488,975 2,050,533 31,114
Trading Account Securities (Losses) (230,467)
Net Gain on Sale of Loans 982,840
Mortgage Brokerage Fees 3,351,192 996,815
Other 859,813 805,283 1,585,047
</TABLE>
An important portion of the Corporation's revenue is derived from other income,
which includes service charges on deposit accounts, gains and losses on trading
account securities, sales of loans and investment securities, and other fees and
charges. Other income decreased $21,983, or 0.32%, in 1992 compared to 1991,
while increasing $3,795,321, or 120.43%, in 1991 when compared to 1990.
The slight decrease in other income in 1992 was primarily due to decreases in
net securities gains and net gains on loan sales coupled with a trading account
securities loss. These decreases were offset by a strong increase in mortgage
brokerage fee revenue. Unlike the significant 1991 investment repositioning
activity, the decrease in securities gains of $1,561,558 when comparing 1992 to
1991 was evidenced by the fact that in 1992 there was less repositioning of the
investment portfolio to improve the overall economic return and only once, in
early 1992, securities sales of approximately $15,000,000 did occur to provide
funding for the decrease in average interest-bearing liabilities of
approximately $16,000,000 during the first quarter of 1992. Of the $65,937,826
in 1992 investment securities sales, $53,649,485 occurred at two bank
subsidiaries. As such, trading accounts have been established during 1992 at
those subsidiaries and all investment securities with a maturity of three years
or more were transferred from the investment account into the trading account.
In addition, a policy has been adopted at those two subsidiaries stating that
all future security purchases with a maturity in excess of three years will be
placed in the trading account. The trading account was first introduced in 1992
and the loss during the year was $230,467. The absence of 1992 gains on sales of
loans was due to the sale of a certain group of seasoned mortgages which only
occurred in 1991.
The reason for the increase in mortgage brokerage fees of $2,354,377, or
236.20%, from $996,815 in 1991 to $3,351,192 in 1992 was due to the fact that
the mortgage division did not commence operations until April 1991 and the fact
that during 1992 mortgage sales expanded substantially. Mortgage division bro-
kerage fees are earned in conjunction with the generation of mortgage loans sold
in the secondary market. During 1992, mortgage closings totaled $174,145,400
compared to $39,527,800 in closings in 1991.
B-20
MANAGEMENT'S DISCUSSION AND ANALYSIS (CONTINUED)
<TABLE>
<CAPTION>
Other Expense
For the Year Ended December 31, 1992 1991 1990
<S> <C> <C> <C>
Total Other Expense $26,398,748 $20,798,420 $18,201,229
Salaries and Employee Benefits $10,717,832 $ 8,900,125 $7,970,042
Net Occupancy Expense 2,631,319 2,549,644 2,342,592
Furniture and Equipment 1,429,491 1,374,741 1,466,899
Data Processing 1,408,117 1,381,359 1,196,612
Marketing 644,913 571,794 585,356
Stationery and Supplies 409,416 428,429 336,423
Insurance 1,247,727 1,073,427 486,167
Directors' Fees 356,597 363,500 341,582
Legal 468,706 447,504 370,605
Mail and Courier 491,012 473,358 366,007
Amortization of Cost in Excess of the
Fair Value of Net Assets Acquired 797,728 790,584 790,584
Restructuring Charges 2,389,707
Other 3,406,183 2,443,955 1,948,360
</TABLE>
Other expense includes the major categories of salaries and employee benefits,
net occupancy expense, furniture and equipment expense, and other expenses
associated with day-to-day operations. Other expense increased $5,600,328, or
26.93%, in 1992, compared to 1991 where this category increased $2,597,191, or
14.27%, compared to 1990.
Salaries and employee benefits, the largest component of other expense, account
for 40.60% of total other expense in 1992, totaling $10,717,832 and showing an
increase of $1,817,707, or 20.42%, from 1991. This increase resulted partially
from normal merit raise increases and principally from a $1,721,297, or 444.93%,
increase in salaries and benefits associated with the mortgage brokerage
division. This dramatic increase, which accounted for 94.96% of the total
salary and benefits increase, is directly correlated with the 1992 increase in
mortgage closings.
Insurance expense increased approximately $174,300, or 16.24%, of which $153,913
pertains to the substantial rate assessment increases imposed by the Federal
Deposit Insurance Corporation during 1991. Other expense increased
approximately $962,000, or 39.37%. Of this increase, approximately $434,000
was attributed to mortgage brokerage operating costs due to the impact of a full
twelve months of operating activity in 1992, coupled with an increase in
mortgage loan activity. Another $502,605 of the other expense increase is due to
nonrecurring items, of which the majority consisted of the write-down of long
lived assets, associated with a facility remodeling, to their net realizable
value.
Restructuring Charges
In 1992, the Corporation incurred a restructuring charge of $2,389,707 in
connection with the closure of a branch facility and consolidation of backroom
operations at one of the subsidiary banks. The restructuring charge is composed
B-21
MANAGEMENT'S DISCUSSION AND ANALYSIS (CONTINUED)
primarily of the estimated cost of two lease buy-out agreements and the
write-off of certain related leasehold improvements, furniture, fixtures, and
equipment.
This charge is part of the Corporation's strategic initiatives and
organizational enhancements program. The restructuring program involved
one-time actions aimed at reducing operating expenses and improving overall
profitability. Management responded to changing market conditions by closing an
unprofitable facility. The charge taken for backroom consolidation was
necessary due to the high occupancy costs at one of our subsidiary banks. The
Corporation will be merging data processing and backroom operations involving
similar activities into one central location. This will result in economies of
scale and the elimination of duplicative services and functions. The
consolidation of other subsidiary banks backroom operations is expected to occur
in 1993 and related costs are expected to be minimal. Benefits from this
restructuring should begin to be realized in 1993 and both moves are expected to
result in an aggregate annual savings of approximately $850,000, mainly from
occupancy and related depreciation and amortization expense reductions.
Income Taxes
There were no recorded income taxes in 1992, $663,909 in 1991 and $302,117 in
1990, which represent effective tax rates of zero percent, 18.00% and 9.88%,
respectively. The statutory Federal income tax rate was 34.00% for all reported
years. The effective tax rates differ from the statutory Federal income tax
rates primarily due to the nonrecognition of approximately $1,200,000 in net
operating loss in 1992 and investments in certain tax-exempt investment
securities. Investment income exempt from Federal income tax totaled $1,602,107
in 1992, $2,114,467 in 1991 and $2,375,379 in 1990. The 1991 income tax
provision includes a provision in lieu of taxes of $9,403, which represents the
benefits realized from utilization of a portion of Merchandise National Bank's
pre-acquisition tax operating loss carryforward. For financial reporting
purposes, the realization of the tax benefit is treated as a reduction of the
unamortized cost in excess of fair value of net assets acquired.
In February, 1992, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards No. 109, "Accounting for Income
Taxes" (SFAS No. 109"), which adopts the liability method of comprehensive
inter-period tax accounting and requires, among other things, provision for
deferred income taxes at the statutory rates (including the effects of giving
consideration to alternative taxing systems) in effect for the period in which
the taxes will become payable rather than at the rate in effect for the current
period. Additionally, accumulated deferred taxes, recorded at historical rates
on the balance sheet, must be adjusted for the expected taxes owed or
refundable. "SFAS No. 109" is effective for fiscal years beginning after
December 15, 1992. The Corporation's management has reviewed "SFAS No. 109" and
the proposed changes to determine the impact that the adoption will have on the
financial statement. The Corporation will adopt the statement January 1, 1993.
The cumulative effect of this accounting change is expected to have a financial
statement benefit of approximately $200,000.
B-22
MANAGEMENT'S DISCUSSION AND ANALYSIS (CONTINUED)
<TABLE>
<CAPTION>
Analysis of the Balance Sheets
December 31, 1992 1991
<S> <C> <C>
Total Assets $516,071,198 $516,943,125
Cash and Cash Equivalents $43,640,421 $ 34,648,387
Trading Account Securities 23,420,587
Investment Securities 78,512,121 119,522,336
Net Loans 333,312,617 324,760,366
Deposits:
Demand 99,203,438 85,431,318
Savings, NOW and Money Market Accounts 206,535,968 182,389,206
Time Deposits 153,922,008 189,168,061
Total Deposits 459,661,414 456,988,585
Federal Funds Purchased and Securities Sold
under Agreements to Repurchase 370,000 2,750,000
Other Short-Term Borrowings 13,500,000 11,500,000
</TABLE>
Assets--At December 31, 1992, the Corporation had total assets of $516,071,198
representing a decrease of $871,927, or 0.17%, compared to total assets of
$516,943,125 at December 31, 1991. Although the decrease was slight, there was
a significant shift within the individual asset categories. Investment
securities decreased $41,010,215, or 34.31%. At December 31, 1992, investment
securities had gross unrealized securities gains and losses of $3,164,356 and
$171,543, respectively. The investment securities decrease was primarily
attributable to the establishment of a trading securities account in 1992 and a
shift of funds from maturing investment securities to higher yielding assets,
mainly in loans, which increased by $9,896,762. During 1992, the establishment
of the trading account represented the entire $23,420,587 increase in trading
account securities. In conjunction with the establishment of trading account
securities asset category, the Corporation adopted a policy at two subsidiaries,
which states that all future purchases of securities with an initial maturity
date in excess of three years will be placed in the trading account.
Additionally, there was an increase of $8,992,034 in cash and cash equivalents
during 1992 and the Corporation's earning assets as a percentage of total
assets was 86.36% at December 31, 1992, compared to 87.68% at December 31, 1991.
At December 31, 1991, the Corporation had total assets of $516,943,125
representing an increase of $41,074,957, or 8.63%, compared to total assets of
$475,868,168 at December 31, 1990. The increase is primarily the result of an
increase of $34,325,912 in net loans. Additionally, an increase of $24,493,879
B-23
MANAGEMENT'S DISCUSSION AND ANALYSIS (CONTINUED)
in investments was partially offset by a decrease in cash and cash equivalents
of $15,801,635. During 1991, the Corporation, in anticipation of short-term
interest rate declines, changed its investment strategy. Management shifted the
majority of its Federal funds sold positions to investment securities, primarily
in U.S. Treasury securities. Funding for the asset increases was provided by the
increase in interest- bearing deposits. The Corporation's earning assets as a
percentage of total assets was 87.68% at December 31, 1991, compared to 87.05%
at December 31, 1990.
Liabilities--At December 31, 1992, the Corporation had total deposits of
$459,661,414 representing an increase of $2,672,829, or 0.58%, compared to total
deposits of $456,988,585 at December 31, 1991. Overall, noninterest-bearing
deposits showed an increase of approximately $13,800,000, principally due to
normal growth and interest-bearing time depositor indecision on the direction of
interest rates. Savings, NOW, and money market deposits increased by
approximately $24,100,000, due to the shift of maturing interest-bearing time
deposits to these accounts. The remaining amount of the savings, NOW, and money
market deposit increase was due to a new third quarter 1992 depositor who has
been maintaining an average balance of approximately $12,600,000. The decrease
of approximately $35,200,000 in time deposits is attributable to time deposits
originated through a special promotion in the later summer months of 1991, which
matured and were not renewed, coupled with a maturity shift to both non-interest
bearing deposits and savings, NOW, and money market accounts.
Federal funds purchased and securities sold under agreements to repurchase
decreased $2,380,000 primarily caused by one customer shifting from repurchase
agreements into a money market account.
The increase in other short-term funds borrowed of $2,000,000 represents the
combination of a $1,500,000 principal repayment coupled with $3,500,000 in
additional borrowings. The additional borrowings were used for capital injection
purposes at one of the banking subsidiaries.
Interest Rate Sensitivity
Interest rate sensitivity is a factor in determining liquidity. More
importantly, it addresses the relationship between market interest rates and
earnings due to the repricing characteristics of assets and liabilities. The
Corporation's net interest income is affected by changes in the level of market
interest rates. To the degree that assets reprice on different dates than
liabilities, earnings will be sensitive to interest rate changes. If more
liabilities than assets reprice in a given period, a liability sensitive
position is created. When this occurs, market interest rate changes will be
reflected more quickly in the liability rates. If interest rates decline, such
positions will benefit net interest income. Alternatively, where the assets
reprice more quickly than liabilities in a given period, an asset sensitive
position is created. This means that a decline in market rates will have an
adverse effect on net interest income. One way to eliminate interest rate risk
B-24
MANAGEMENT'S DISCUSSION AND ANALYSIS (CONTINUED)
is to maintain a balanced interest rate sensitivity position which can be
achieved by matched funding. Matched funding is adjusting the asset and
liability mix so that roughly equal volumes of assets and liabilities reprice
each period.
Profits, however, are not always maximized by matched funding. The mismatch
between asset and liability repricing characteristics in specific time intervals
is referred to as interest rate sensitivity gap. To increase earnings, the
Corporation selectively mismatches asset and liability repricing to take
advantage of short-term interest rate movements and the shape of the yield
curve. The size of the asset/liability mismatch depends on careful assessment of
the risks presented by forecasted interest rate movements. The risk inherent in
such a mismatch, or gap, is that interest rates may not move as anticipated.
On a daily basis, the degree of structural interest rate sensitivity, for
example mismatching, is monitored by using various methods, including interest
rate gap analysis. An interest rate gap is the different between volumes of
assets and liabilities maturing or repricing during a future time interval. Gap
analysis provides a static view of interest rate sensitivity caused by
mismatching. The Corporation manages the repricing of earning assets relative
to the pricing of supporting liabilities in the light of interest rate
forecasts, within an acceptable level of risk to enhance earnings. In managing
its interest rate risk, the Corporation approves risk limits through its Asset
and Liability Management Committee. In determining its position, the Corporation
uses various quantitative models to forecast the impacts of current and proposed
positions given various interest rate scenarios, such as rises or declines in
interest rates and changes in the shape of the yield curve. Such forecasts and
simulations of net interest margin are used to supplement gap analysis and to
identify dynamic interest rate sensitivity. The Corporation's six-month
cumulative ratio of rate sensitive assets to rate sensitive liabilities at
December 31, 1992, was 111.52%. This particular ratio indicates that in a rising
rate environment, there will be a slight positive impact on current earnings.
The table below presents the cumulative repricing of the Corporation's balance
sheet at December 31, 1992. For any given period, the structure is matched when
an equal amount of assets and liabilities reprice. Any excess of the assets or
the liabilities over these matched items results in a gap. A negative gap, below
100.00%, denotes liability sensitivity and a positive gap, above 100.00%,
denotes asset sensitivity.
B-25
MANAGEMENT'S DISCUSSION AND ANALYSIS (CONTINUED)
<TABLE>
<CAPTION>
(in thousands) Up to Up to Up to Up to Up to 5 Years
December 31, 1992 1 Month 3 Months 6 Months 1 Year 5 Years and over
<S> <C> <C> <C> <C> <C> <C>
Assets:
Loans $140,469 $155,798 $178,118 $213,461 $284,991 $350,127
Investments, Including Trading
Account Securities 9,045 12,400 12,903 17,161 83,704 100,862
Other Assets 5,440 5,440 5,440 5,440 5,440 43,769
Total Rate Sensitive Assets $154,954 $173,638 $196,461 $236,062 $374,135 $494,758
Liabilities and Equity:
Deposits $103,219 $133,226 $175,797 $210,557 $230,893 $329,184
Other Liabilities 370 370 370 370 370 4,542
Equity 37,418
Total Rate Sensitive
Liabilities $103,589 $133,596 $176,167 $210,927 $231,263 $371,144
Cumulative Gap $ 51,365 $ 40,042 $ 20,294 $ 25,135 $142,872 $123,614
Cumulative Ratio (%) 149.59% 129.97% 111.52% 111.92% 161.78% 133.31%
</TABLE>
The Corporation does not consider savings accounts to be interest rate
sensitive. Accordingly, all savings account balances are included in the five
year and over deposit category. All other rate sensitive assets and liabilities
are based upon their contractual terms.
Liquidity
The purpose of liquidity management is to ensure sufficient cash flow, even
under adverse conditions, to meet all financial commitments. Besides serving as
a financial backstop in meeting maturing obligations, liquidity provides
flexibility in responding to market opportunities, customer initiatives, and
capitalizing on opportunities for business expansion. Liquidity management
addresses the Corporation's ability to meet deposit withdrawals either on demand
or at contractual maturity, to repay borrowings as they mature and to make new
loans and investments as opportunities arise at minimal cost.
The primary source of liquidity for the Corporation arises from its ability to
generate retail demand deposits, money market deposit accounts, savings
accounts, and smaller denomination certificates of deposit from retail
customers. The Corporation considers funds from such sources to comprise its
"core" fund base because, historically, these sources of funds have been
relatively stable. Other liquidity sources include maturities and sales of
investment securities, loans and trading securities, maturities of
interest-bearing deposits with banks, issuance of other short-term liabilities
B-26
MANAGEMENT'S DISCUSSION AND ANALYSIS (CONTINUED)
and cash provided from operations. The Corporation does not rely on brokered
deposits as sources of liquidity.
Liquidity is managed on a daily basis at both the Corporation and the subsidiary
levels. Procedures are in place to monitor and react to changes in liquidity and
fluctuations in market conditions. Contingency plans exist and could be
implemented on a timely basis to minimize any risk associated with dramatic
changes in market conditions. At December 31, 1992, the Corporation's
liquidity, as measured by Federal funds sold net of Federal funds purchased and
repurchase agreements, cash and due from banks, and investment securities with
maturities of one year or less, totaled approximately $51,871,000, or 11.28%, of
total deposits.
Capital Strength
The Corporation's capital serves several purposes. Among which, it supports
growth, provides protection to depositors, and represents the investment of
stockholders on which management strives to achieve adequate returns.
At December 31, 1992, Stockholders' Equity totaled $37,862,322, down
$3,766,604 from December 31, 1991. The decline in equity reflects a net loss of
$2,724,369 and the payment of $362,235 and $680,000 in Common and Preferred
Stock dividends.
The Corporation's principal capital adequacy objective is to achieve strong
capital ratios relative to its peer group and to regulatory capital guidelines.
Management believes that a strong capital position is instrumental in achieving
enhanced stockholder returns over the long-term.
In January 1989, the Federal Reserve Board issued risk-based capital guidelines,
which require banking organizations to maintain certain ratios of "qualifying
capital" to "risk-weighted assets." These capital guidelines measure the
strength of banking organizations. The calculation of risk-based capital
requires that capital be maintained for both balance sheet assets and
off-balance sheet exposures in accordance with their respective credit risk.
Effective September 30, 1990, the Federal Reserve Board established a new
capital standard, referred to as the Tier 1 leverage ratio ("Leverage Ratio").
The Leverage Ratio is an ongoing tool to monitor capital in relation to total
average assets and is designed to complement the risk-based capital ratios in
determining the overall capital adequacy of banking organizations.
Additionally, the Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA") became law on December 19, 1991. This law will have a significant
impact on the operation of banks and savings associations and their relationship
with federal regulatory agencies. Although certain provisions are currently in
effect, the major provisions of FDICIA are effective January 1, 1993.
B-27
MANAGEMENT'S DISCUSSION AND ANALYSIS (CONTINUED)
The following table represents various measures of capital at:
<TABLE>
<CAPTION>
Risk-Based Ratios
Tier 1 Capital Total Risk-Based Capital Leverage Ratio
December 31, 1992 1991 1992 1991 1992 1991
<S> <C> <C> <C> <C> <C> <C>
Corporation 6.24% 7.26% 7.72% 8.57% 4.09% 4.52%
Bank Subsidiaries:
Merchandise National Bank 8.56 8.77 10.06 10.25 6.20 6.26
Edgewood Bank 9.18 10.23 10.13 11.40 6.83 6.68
EdgeMark Bank Lombard 8.94 9.17 10.06 10.53 5.72 5.97
First National Bank of Lockport 12.67 13.67 13.72 14.89 5.95 7.09
EdgeMark Bank Rosemont 16.50 18.24 17.50 19.41 12.42 10.99
Minimum Regulatory Guidelines
Effective January 1, 1993 4.00% 4.00% 8.00% 8.00% 3.00% 3.00%
Minimum FDICIA Guidelines (for
adequately capitalized institutions)
Effective January 1, 1993 4.00% 4.00% 8.00% 8.00% 4.00% 4.00%
</TABLE>
Tier 1 Capital Ratio--Stockholders' Equity minus the cost in excess of the fair
value of net assets acquired divided by risk-adjusted assets as defined in the
guidelines.
Total Risk-Based Capital Ratio--Tier 1 capital plus the allowance for loan
losses (as defined by the transitional rules) and the equity commitment note
divided by risk-adjusted assets.
Leverage Capital Ratio--Tier 1 under the 1992 guideline to quarterly average
assets.
One of management's primary objectives is to maintain a strong capital position
to merit the confidence of clients, the investing public, bank regulators, and
stockholders. A strong capital position should help the Corporation withstand
unforeseen adverse developments and take advantage of profitable investments
when they arise.
The Corporation's Tier 1 and total risk-based capital ratios, as well as its
capital leverage ratios, exceed the current regulatory minimums. In addition,
each subsidiary bank is considered "well capitalized" under the FDICIA Capital
Level Rules. The Corporation intends to continue to build its capital resources
in the coming year through internal capital generation and balance sheet
management.
Presently, the Corporation does not have any material commitments for capital
expenditures, except for approximately $1,897,000 to expand one of its branch
facilities and remodel one of its main banks.
B-28
INDEPENDENT AUDITORS' REPORT
KPMG Peat Marwick
Certified Public Accountants
To The Board of Directors and Stockholders of
EdgeMark Financial Corporation:
We have audited the accompanying consolidated balance sheets of the
EdgeMark Financial Corporation and its subsidiaries as of December 31, 1992
and 1991, and the related consolidated statements of earnings, changes in
stockholders' equity, and cash flows for the years then ended. These
financial statements are the responsibility of the Corporation's
management. Our responsibility is to express an opinion on these financial
statements based on our audits. The consolidated statements of earnings,
changes in stockholders' equity, and cash flows for the year ended
December 31, 1990, were audited by other auditors whose report dated
February 26, 1991, expressed an unqualified opinion on those statements.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating other
overall financial statement presentation. We believe that our audits
provide a reasonable basis for our opinion.
In our opinion, the 1992 and 1991 consolidated financial statements
referred to above present fairly, in all material respects, the financial
position of EdgeMark Financial Corporation and its subsidiaries as of
December 31, 1992 and 1991, and the results of their operations and their
cash flows for the years then ended in conformity with generally accepted
accounting principles.
Chicago, Illinois
February 22, 1993
B-29
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
EdgeMark Financial Corporation and Subsidiaries
At December 31, 1992 1991
<S> <C> <C>
Assets
Cash and Due from Banks (Note 2) $ 38,240,421 $ 30,153,387
Federal Funds Sold 5,400,000 4,495,000
Cash and Cash Equivalents 43,640,421 34,648,387
Trading Account Securities 23,420,587
Investment Securities (market value of 1992--
$81,504,934; 1991--$123,467,737) (Note 3) 78,512,121 119,522,336
Loans (Notes 4, 5 and 16) 351,200,861 341,304,099
Less: Unearned Income (12,865,628) (12,097,640)
Allowance for Loan Losses (5,022,616) (4,446,093)
Net Loans 333,312,617 324,760,366
Premises and Equipment (Note 6) 12,970,490 13,732,631
Interest Receivable and Other Assets 7,462,673 6,729,388
Cost in Excess of the Fair Value of Net Assets
Acquired (Net of accumulated amortization
in 1992--$3,171,723; 1991--$2,373,995) 16,752,289 17,550,017
Total Assets $516,071,198 $516,943,125
Liabilities and Stockholders' Equity
Liabilities
Deposits: (Note 7)
Demand $ 99,203,438 $ 85,431,318
Savings, NOW and Money Market Accounts 206,535,968 182,389,206
Time Deposits 153,922,008 189,168,061
Total Deposits 459,661,414 456,988,585
Federal Funds Purchased and Securities Sold under
Agreements to Repurchase 370,000 2,750,000
Accrued Expense and Other Liabilities 4,677,462 4,075,614
Other Short-Term Borrowings (Note 8) 13,500,000 11,500,000
Total Liabilities 478,208,876 475,314,199
Commitments and Contingent Liabilities
Note 11 and 16)
Stockholders' Equity
Preferred Stock--authorized 200,000 shares of
no par value, 80,000 shares of Series A
Preferred Stock ($100 stated value) issued
and outstanding (Note 12) 7,746,906 7,646,595
B-30
Common Stock--authorized 3,000,000 shares of
$1.00 par value, shares issued 1,576,872
(Note 13) 1,576,872 1,576,872
Surplus 25,614,966 25,614,966
Retained Earnings (Note 13) 4,042,975 7,909,890
Less: Treasury Stock at Cost (shares in
1992--127,933; 1991--127,933) (1,119,397) (1,119,397)
Total Stockholders' Equity 37,862,322 41,628,926
Total Liabilities and Stockholders' Equity $516,071,198 $516,943,125
<FN>
See Accompanying Notes to Consolidated Financial Statements.
</TABLE>
B-31
STATEMENTS OF CONSOLIDATED EARNINGS
<TABLE>
EdgeMark Financial Corporation and Subsidiaries
<CAPTION>
For the Years Ended December 31, 1992 1991 1990
<S> <C> <C> <C>
Interest Income
Loans, Including Fees $30,189,269 $32,275,911 $31,448,969
Federal Funds Sold 653,794 1,114,220 2,277,144
Trading Account Securities 132,452
Investment Securities:
Taxable 4,879,558 6,110,723 4,861,524
Exempt from Federal Income Tax 1,602,107 2,114,467 2,375,379
Total Interest Income 37,457,180 41,615,321 40,963,016
Interest Expense
Deposits 14,389,342 20,168,311 20,707,424
Federal Funds Purchased and Repurchase
Agreements 102,713 118,213 194,973
Other Short-Term Borrowings (Note 8) 730,056 591,286
Long-Term Debt and Equity Commitment Note 562,131 1,400,625
Total Interest Expense 15,222,111 21,439,941 22,303,022
Net Interest Income 22,235,069 20,175,380 18,659,994
Provision for Loan Losses (Note 5) 5,485,593 2,661,681 555,500
Net Interest Income after Provision for Loan
Losses 16,749,476 17,513,699 18,104,494
Other Income
Service Charges on Deposit Accounts 2,455,390 2,111,415 1,535,404
Net Securities Gains (Note 3) 488,975 2,050,533 31,114
Trading Account Securities (Losses) (230,467)
Net Gain on Sale of Loans (Note 4) 982,840
Mortgage Brokerage Fees 3,351,192 996,815
Other 859,813 805,283 1,585,047
Total Other Income 6,924,903 6,946,886 3,151,565
Other Expense
Salaries and Employee Benefits (Note 9) 10,717,832 8,900,125 7,970,042
Net Occupancy Expense 2,631,319 2,549,644 2,342,592
Furniture and Equipment 1,429,491 1,374,741 1,466,899
Data Processing 1,408,117 1,381,359 1,196,612
Marketing 644,913 571,794 585,356
Stationery and Supplies 409,416 428,429 336,423
Insurance 1,247,727 1,073,427 486,167
B-32
Directors' Fees 356,597 363,500 341,582
Legal 468,706 447,504 370,605
Mail and Courier 491,012 473,358 366,007
Amortization of Cost in Excess of the
Fair Value of Net Assets Acquired 797,728 790,584 790,584
Restructuring Charges (Note 14) 2,389,707
Other 3,406,183 2,443,955 1,948,360
Total Other Expense 26,398,748 20,798,420 18,201,229
Income (Loss) Before Income Taxes (2,724,369) 3,662,165 3,054,830
Applicable Income Taxes (Note 10) 663,909 302,117
Net Income (Loss) $(2,724,369) $ 2,998,256 $ 2,752,713
Net Income (Loss) Applicable to
Common Stock $(3,504,680) $ 2,209,189 $ 1,822,859
Net Income (Loss) Per Common and Common
Share Equivalent Share (Note 13) $ (2.41) $ 1.51 $ 1.24
Weighted Average Common and Common
Equivalent Shares Outstanding (Note 13) 1,454,641 1,459,440 1,466,958
<FN>
See Accompanying Notes to Consolidated Financial Statements.
</TABLE>
B-33
STATEMENTS OF CHANGES IN CONSOLIDATED STOCKHOLDERS' EQUITY
<TABLE>
EdgeMark Financial Corporation and Subsidiaries
For the Years Ended December 31, 1992, 1991 and 1990
<CAPTION>
Series A
Preferred Common Retained Treasury
Stock Stock Surplus Earnings Stock Total
<S> <C> <C> <C> <C> <C> <C>
Balance at January 1, 1990 $ 8,000,000 $ 1,576,872 $24,991,941 $4,601,683 $(1,141,385) $38,029,111
Stock Options Exercised,
2,273 Shares 30,118 19,888 50,006
Net Income 2,752,713 2,752,713
Discount on Floating-Rate
Preferred Stock (589,727) 589,727
Accretion of Preferred
Stock Discount 147,655 (147,655)
Cash Dividends Declared
on Common Stock
($0.25 per share) (361,606) (361,606)
Cash Dividends Declared
on Preferred Stock
($9.78 per share) (782,199) (782,199)
Balance at December 31, 1990 7,557,928 1,576,872 25,611,786 6,062,936 (1,121,497) 39,688,025
Sale of 240 Shares of
Treasury Stock 3,180 2,100 5,280
Net Income 2,998,256 2,998,256
Accretion of Preferred
Stock Discount 88,667 (88,667)
Cash Dividends Declared
on Common Stock ($0.25 per share) (362,235) (362,235)
Cash Dividends Declared on
Preferred Stock ($8.76 per share) (700,400) (700,400)
B-34
Balance at December 31, 1991 7,646,595 1,576,872 25,614,966 7,909,890 (1,119,397) 41,628,926
Net Loss (2,724,369) (2,724,369)
Accretion of Preferred
Stock Discount 100,311 (100,311)
Cash Dividends Declared on
Common Stock ($0.25 per share) (362,235) (362,235)
Cash Dividends Declared on Pre-
ferred Stock ($8.50 per share) (680,000) (680,000)
Balance at December 31, 1992 $7,746,906 $1,576,872 $25,614,966 $4,042,975 $(1,119,397) $37,862,322
<FN>
See Accompanying Notes to Consolidated Financial Statements.
</TABLE>
B-35
STATEMENTS OF CONSOLIDATED CASH FLOWS
<TABLE>
EdgeMark Financial Corporation and Subsidiaries
Decrease in Cash and Cash Equivalents
<CAPTION>
For the Years Ended December 31, 1992 1991 1990
<S> <C> <C> <C>
Cash Flows from Operating Activities:
Net Income (Loss) $ (2,724,369) $ 2,998,256 $ 2,752,713
Adjustments to Reconcile Net Income (Loss) to
Net Cash from
Operating Activities:
Provision for Loan Losses 5,485,593 2,661,681 555,500
Amortization of Cost in Excess of the Fair
Value of Net Assets Acquired 797,728 790,584 790,584
Depreciation, Amortization and Accretion 1,943,431 592,665 641,850
Net Securities Gains (488,975) (2,050,533) (31,114)
Net (Increase) in Trading Account Securities (8,952,187)
Net Trading Account Securities Losses 230,467
Net Gain on Loan Sales (982,840)
Mortgage Loans Originated (167,473,991) (46,199,209)
Mortgage Loans Sold 164,443,683 39,527,800
Deferred Income Tax Benefit (87,683) (307,303) (136,145)
Provision in Lieu of Income Taxes 9,403
(Increase) Decrease in Interest Receivable
and Other Assets (645,602) 1,015,485 (746,869)
Increase (Decrease) in Accrued Expenses and
Other Liabilities 601,848 (639,964) (662,280)
Net Cash (Used for) from Operating Activities (6,870,057) (2,583,975) 3,164,239
Cash Flows from Investing Activities:
Purchase of Investment Securities (78,549,171) (205,876,014) (74,586,454)
Proceeds from Sales of Investment Securities 65,937,826 131,436,810 13,358,459
B-36
Proceeds from Maturities of Investment Securities 38,669,288 51,863,850 43,763,260
Net (Increase) in Loans (10,725,358) (28,434,465) (22,567,736)
Net Purchase of Premises and Equipment (796,790) (1,000,210) (1,609,758)
Net Cash from (Used for) Investing Activities 14,535,795 (52,010,029) (41,642,229)
Cash Flows from Financing Activities:
Net Increase in Deposits 2,748,531 43,174,724 25,360,475
Net (Decrease) Increase in Federal Funds Purchased
and Securities Sold Under Agreements to
Repurchase (2,380,000) (1,825,000) 1,678,000
Proceeds from Issuance of Other Short-Term
Borrowings 15,000,000 13,000,000
Repayment of Other Short-Term Borrowings (13,000,000) (1,500,000)
Repayment of Equity Commitment Notes (3,600,000)
Repayment of Other Long-Term Debt (9,400,000) (500,000)
Net Proceeds from Exercise of Options and Sale
of Treasury Stock 5,280 50,006
Preferred Stock Dividends Paid (680,000) (700,400) (782,199)
Common Stock Dividends Paid (362,235) (362,235) (361,606)
Net Cash from Financing Activities 1,326,296 38,792,369 25,444,676
Net Increase (Decrease) in Cash and Cash
Equivalents 8,992,034 (15,801,635) (13,033,314)
Cash and Cash Equivalents, January 1 34,648,387 50,450,022 63,483,336
Cash and Cash Equivalents, December 31 $43,640,421 $34,648,387 $50,450,022
<FN>
See Accompanying Notes to Consolidated Financial Statements.
</TABLE>
B-37
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Summary of Significant Accounting Policies
General--EdgeMark Financial Corporation (the "Corporation") is a multi-bank
holding company organized under the laws of the State of Delaware in 1979
and registered under the Bank Holding Company Act of 1956, as amended. The
Corporation conducts domestic business through its wholly owned bank
subsidiaries: Merchandise National Bank of Chicago, Edgewood Bank,
EdgeMark Bank Lombard, First National Bank of Lockport, and EdgeMark Bank
Rosemont. The accounting and financial reporting policies of the
Corporation and its subsidiaries conform to generally accepted accounting
principles and to prevailing practices within the banking industry. The
following is a description of the more significant accounting policies and
practices of the Corporation.
Basis of Presentation--The consolidated financial statements include the
accounts of the Corporation and its wholly owned subsidiaries. All
significant intercompany accounts and transactions have been eliminated in
consolidation. The accounts of subsidiaries acquired in purchase
transactions are included in the accompanying financial statements from the
respective dates of their acquisition. Cost in Excess of the Fair Value of
Net Assets Acquired arising from purchases of subsidiaries is being
amortized using the straight-line basis over the estimated periods to be
benefited, 25 years.
Trading Account Securities--Trading account security assets consist solely
of U.S. Treasury securities and are stated at market value. Both realized
and unrealized gains and losses on trading account security activities are
reflected in other income as trading account security gains and losses.
Investment Securities--Securities acquired for the purpose of generating
interest income over the life of the instrument and diversifying risk are
classified as investment securities. The intent is to hold these
securities for the foreseeable future as long-term investments. Investment
securities are stated at cost, adjusted for amortization of premiums and
accretion of discounts. Gains and losses on the sale of investment
securities are computed on a specific identification basis.
Loans--Loans are reported, at the principal amount outstanding, net of
unearned income and allowance for loan losses. Interest income on non-
discounted loans is recognized on the accrual basis, based on loan
principal amounts outstanding at appropriate interest rates. Unearned
income on loans is recognized based on methods that approximate a level
rate of return over the terms of the loans.
Nonaccrual Loans--Nonaccrual loans are those loans on which the accrual of
interest income is discontinued when it appears that future collection of
principal or interest in accordance with contractual terms may be doubtful.
It is the Corporation's policy to place such a loan on a "cash basis." Any
B-38
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
accrued but unpaid interest previously recorded in the current period on
such loans is reversed against any current period interest revenue. Cash
receipts of interest on cash basis loans are recorded as either revenue or
a reduction of principal, according to management's judgment as to the
collectibility of principal. A loan may be restored to accrual status only
after all delinquent interest and principal are brought current, and the
borrower's financial condition is normalized and a regular payment
performance is established.
Allowance for Loan Losses--Additions to the allowance are made by means of
the provision for loan losses charged to expense. Loan losses are deducted
from the allowance, and subsequent recoveries are added. The level of net
loan losses for the year is a significant factor in determining the
appropriate level for the provision for loan losses. Based on management's
judgment as to the appropriate level of the allowance for loan losses, the
amount actually provided may be greater or less than the net loan losses
for the year. The allowance for loan losses is maintained at a level
considered adequate to absorb losses on existing loans that may become
uncollectible based on management's judgment of the loan collectibility and
prior loan loss experience. The allowance is based on management's formal
review and takes into consideration such factors as changes in the nature,
quality, and volume of the overall loan portfolio, review of specific
problem loans, and current economic conditions that may affect the
borrowers' ability to pay.
Premises and Equipment--Premises and equipment, including leasehold
improvements and betterments, are stated at original cost less accumulated
depreciation and amortization. Depreciation and amortization are computed
primarily on the straight-line method over the useful lives of the related
assets. Maintenance and repairs are charged to noninterest expense as
incurred and betterments are capitalized. Gains and losses on disposals
are generally reflected in earnings.
Other Real Estate--Other real estate includes assets that have either been
acquired in satisfaction of debt ("assets owned") or substantially
repossessed ("in-substance foreclosures"). In-substance foreclosures occur
when the market value of the collateral is less than the legal obligation
of the borrower and the Corporation expects repayment of the loan to come
only from collateral. Other real estate is recorded at fair market value
less estimated liquidation costs, at the date of transfer. Any valuation
adjustments required at the date of transfer are charged to the allowance
for loan losses. Subsequent to the acquisition, other real estate is
carried at the lower of cost or fair market value, based upon periodic
evaluations that consider changes in market conditions, development and
disposition costs, and estimated holding periods. In addition, a separate
reserve is maintained for other real estate, through charges to other
expense, based on management's judgment of the current economic
environment. This further reduces the carrying value of other real estate
B-39
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
assets. Operating results from assets acquired in satisfaction of debt,
including rental income less operating costs and depreciation, are recorded
in other income.
Income Taxes--The Corporation files consolidated federal and state income
tax returns with its subsidiaries. Income taxes, accounted for in
accordance with Accounting Principles Board Opinion No. 11, are accrued
based on income reported for financial statement purposes. Deferred tax
assets and liabilities represent the amount of taxes refundable from prior
years or taxes payable in future years due to timing differences in the
recognition of income and expenses for tax and financial statement
purposes. Timing differences arise from the differences in the book bases
and tax bases of the Corporation's assets and liabilities, which are
expected to reverse at some future date. Income tax expense consists of
both the current and deferred tax consequences of all events that have been
recognized in the financial statements and as measured by the provisions of
enacted tax laws.
In February, 1992, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards No. 109, "Accounting for Income
Taxes" ("SFAS No. 109"), which adopts the liability method of comprehensive
inter-period tax accounting and requires, among other things, provision for
deferred income taxes at the statutory rates (including the effects of
giving consideration to alternative taxing systems) in effect for the
period in which the taxes will become payable rather than at the rate in
effect for the current period. Additionally, accumulated deferred taxes,
recorded at historical rates on the balance sheet, must be adjusted for the
expected taxes owed or refundable. "SFAS No. 109" is effective for fiscal
years beginning after December 15, 1992. The Corporation's management has
reviewed "SFAS No. 109" to determine the impact that the adoption will have
on the financial statements. The Corporation will adopt the statement
January 1, 1993. The cumulative effect of this accounting change is
expected to have a financial statement benefit of approximately $200,000.
Mortgage Brokerage Activities--Effective April 1, 1991, the Corporation
formed a mortgage brokerage division. The sole purpose of its operating
activities is to generate loans and sell them in the secondary market.
Mortgage brokerage fees earned are recognized in other income at the time
loans are sold in the secondary market. Normally, no gains or losses are
incurred on these sales as all loans are funded through pre-sale
agreements. Mortgage servicing rights are not retained by the Corporation.
Trust Assets--Assets, other than deposits in subsidiary banks, held by
subsidiary banks in fiduciary or agency capacities are not included in the
Consolidated Balance Sheets, since such items are not assets of the
Corporation.
B-40
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Per Share Data--Net income per share amounts are computed by dividing net
income, reduced by dividends on preferred stock and discount accretion, by
the weighted average number of common and common equivalent shares for each
period presented. Common share equivalents include dilutive common stock
options.
Fair Value of Financial Instruments--Statement of Financial Accounting
Standards No. 107, "Disclosures about Fair Value of Financial Instruments"
("SFAS No. 107"), requires that the Corporation disclose estimated fair
value for its financial instruments. Fair value estimates, methods and
assumptions are set forth below in each respective financial instruments
footnote.
Reclassification--Certain amounts and disclosures in prior years'
consolidated financial statements have been reclassified to place them on a
comparable basis with the current period's financial statements.
2. Cash and Cash Equivalents
The Corporation's bank subsidiaries are required to maintain average
reserves in accordance with the Federal Reserve Bank guidelines. Such
balances, which are based principally on deposits outstanding, are included
in cash and due from banks. The required balances at December 31, 1992 and
1991, totaled $3,282,000 and $3,236,000, respectively, compared with
average required reserves during the year of $3,085,000 and $2,966,000 in
1992 and 1991. Had these deposits earned interest at average rates on
earnings assets in those years, interest income would have been
approximately $252,000 and $279,000 higher in 1992 and 1991, respectively.
Under "SFAS No. 107," the carrying amounts for cash and cash equivalents
approximate fair value amounts because of their maturity characteristics
and because they do not present unanticipated credit concerns.
3. Investment Securities
A comparison of the book and market values of investment securities at
December 31, 1992 and 1991, follows. The market values of securities are
established with the assistance of independent pricing services and are
based on available market data. Market prices often reflect transactions
of relatively small size and are not necessarily indicative of the prices
at which large amounts of particular issues could readily be sold or
purchased.
B-41
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
<TABLE>
<CAPTION>
1992 1991
Gross Gross Gross Gross
Book Unrealized Unrealized Market Book Unrealized Unrealized Market
Value Gains Losses Value Value Gains Losses Value
<S> <C> <C> <C> <C> <C> <C> <C> <C>
U.S. Treasury $ 56,693,773 $ 1,778,596 $ (107,269) $58,365,100 $ 74,500,515 $2,338,829 $ $ 76,839,344
U.S. Government
Agencies 2,322,502 69,492 (239) 2,391,755 22,125,574 246,307 (3,106) 22,368,775
States and
Political
Subdivisions 19,144,231 1,315,285 (63,984) 20,395,532 22,176,164 1,438,889 (83,025) 23,532,028
Other 351,615 983 (51) 352,547 720,083 7,507 727,590
Total $ 78,512,121 $ 3,164,356 $ (171,543) $81,504,934 $119,522,336 $4,031,532 $(86,131) $123,467,737
<FN>
Under "SFAS No. 107," the fair value of investments are calculated based on the value of one unit without regard to any premium or
discount that may result from concentrations of ownership of a financial instrument, possible
tax ramifications, or estimated transaction costs. If these considerations had been incorporated into the fair value estimates,
the fair amount would not have changed significantly.
</TABLE>
B-42
The book and market values of investment securities at December 31, 1992
and 1991, are shown below by contractual maturity. Actual maturities may
differ from contractual maturities because issuers of investment securities
may have the right to call or repay obligations with or without call or
prepayment penalties.
<TABLE>
<CAPTION>
1992 1991
Book Market Book Market
Value Value Value Value
<S> <C> <C> <C> <C>
Due in one year or less $ 8,918,742 $ 9,019,301 $ 21,898,847 $ 22,051,732
Due after one year through five
years 68,814,794 71,673,178 57,057,673 60,188,275
Due after five years through ten
years 726,097 759,035 38,615,255 39,230,221
After ten years 52,488 53,420 1,950,561 1,997,509
Total $78,512,121 $81,504,934 $119,522,336 $123,467,737
<FN>
Proceeds from the sale of investment securities were $65,937,826 and $131,436,810 during 1992 and 1991, respectively:
</TABLE>
B-43
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
The following table presents the components of net securities gains
during 1992 and 1991:
<TABLE>
<CAPTION>
1992 1991
<S> <C> <C>
Gross realized gains from sales $600,628 $2,054,412
Gross realized losses from sales (111,653) (3,879)
Net Investment Securities Gains $488,975 $2,050,533
</TABLE>
Income taxes applicable to such net security gains was none and $369,096
for the years ended 1992 and 1991, respectively.
Investment securities with a book value of approximately $39,583,000 at
December 31, 1992, and $56,406,000 at December 31, 1991, were pledged to
secure public deposits and securities sold under agreements to repurchase,
and for other purposes required by law.
4. Loans
Loans at December 31, 1992 and 1991, are summarized as follows:
<TABLE>
<CAPTION>
1992 1991
<S> <C> <C>
Commercial $112,466,752 $125,774,256
Real Estate--Construction 2,919,446 4,314,856
Real Estate--Mortgage 66,343,347 66,841,391
Mortgage Loans Held for Sale 9,701,718 6,671,409
Consumer 159,769,598 137,702,187
Total $351,200,861 $341,304,099
</TABLE>
The Corporation's bank subsidiaries grant various types of loans to, and
obtain deposits from, customers principally in the Chicago Metropolitan
area. Most loans are secured by specific items of collateral, including
commercial and residential real estate and other business and consumer
assets. Although the Corporation has a diversified loan portfolio, a
substantial portion of its debtors' ability to honor their contracts is
dependent upon the consumer economic sector.
B-44
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Loans made by the Corporation's bank subsidiaries to or for the benefit of
directors, executive officers, or principal holders of equity securities
(more than 10% ownership) of the Corporation or its subsidiaries are
commonly referred to as related party loans. These loans were made in the
ordinary course of business on substantially the same terms, including
interest rates and collateral, as those prevailing at the same time for
comparable transactions with unrelated parties and did not involve more
than a normal amount of risk or present other unfavorable features. At
December 31, 1992, no such loans were restructured, or were past due 90
days or more, however, one loan for approximately $659,000 was carried on
nonaccrual status.
The related party loans for the years ending December 31, 1992 and 1991,
were as follows:
<TABLE>
<CAPTION>
1992 1991
<S> <C> <C>
Balance at January 1 $ 12,868,000 $ 9,725,000
New Loans 10,412,000 12,577,000
Repayments (13,693,000) (9,434,000)
Charge-Offs (759,000)
Balance at December 31 $8,828,000 $12,868,000
</TABLE>
This table is comprised of all loans, including those loans which in the
aggregate did not exceed $60,000 to any one person or entity.
Loans on which the accrual of interest has been discontinued amounted to
approximately $2,338,000 and $2,266,000 at December 31, 1992 and 1991,
respectively. Loans, accruing interest, whose contractual rate of interest
was reduced or terms lengthened through renegotiation totaled approximately
$1,035,000 and $1,116,000 at December 31, 1992 and 1991, respectively. If
interest on these loans had been accrued under the original terms of the
loans, consolidated income would have included additional interest of
approximately $144,000 in 1992 and $149,000 in 1991.
During 1991, a subsidiary bank sold a block of mortgage loans from its loan
portfolio, resulting in a net gain of $982,840.
Under "SFAS No. 107," fair values are estimated for portfolios of loans
with similar financial characteristics. Loans are segregated by type such
as commercial, commercial real estate, residential mortgage, and other
consumer. Each loan category is further segmented into fixed and
adjustable rate interest terms and by performing and nonperforming
categories.
B-45
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
The fair value of performing loans, except residential mortgage, is
calculated by discounting scheduled cash flows through the estimated
maturity using estimated discount rates that reflect the credit and
interest rate risk inherent in the loan. The estimate of maturity is based
on the Corporation's historical experience with repayments for each loan
classification, modified, as required, by an estimate of the affect of
current economic and lending conditions. For performing residential
mortgage loans, fair value is estimated by discounting contractual cash
flows adjusted for prepayment estimates using discount rates based on
secondary market sources adjusted to reflect differences in servicing and
credit costs.
Fair value of significant nonperforming loans is based on external
appraisals. If appraisals are not available, estimated cash flows are
discounted using a rate commensurate with the risk associated with the
estimated cash flows. Assumptions regarding risk, cash flows, and discount
rates are judgmentally determined using available market information and
specific borrower information.
The following table presents estimated fair value information for loans:
<TABLE>
<CAPTION>
Carrying Estimated
At December 31, 1992 Amount Fair Value
<S> <C> <C>
Commercial $112,466,752 $109,879,506
Real Estate-Construction 2,919,446 2,869,386
Real Estate-Mortgage 76,045,065 81,440,770
Consumer, Net of Unearned Discount 146,903,971 147,021,824
</TABLE>
The following assumptions have been made in estimating the fair value of
loans:
Average maturity represents the expected average cash flow period, which in
some instances is different than the contractual maturity.
Management has used fair value discount rates that it believes to be
reasonable. However, because there is no market for many of these
financial instruments, management has no basis to determine whether the
fair value presented above would be indicative of the fair value negotiated
in an actual sale.
5. Allowance for Loan Losses
A summary of changes in the allowance for loan losses for the years ended
December 31, 1992, 1991, and 1990 follows:
B-46
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
<TABLE>
<CAPTION>
1992 1991 1990
<S> <C> <C> <C>
Balance at January 1 $4,446,093 $3,170,065 $4,919,852
Loans Charged-Off (5,056,025) (1,498,886) (2,452,405)
Recoveries on Loans Charged-Off 146,955 113,233 147,118
Provision for Loan Losses 5,485,593 2,661,681 555,500
Balance at December 31 $5,022,616 $4,446,093 $3,170,065
</TABLE>
Additional details relating to the Corporation's credit risk are set forth
in Note 16, Financial Instruments with Off-Balance Sheet Risk.
6. Premises and Equipment
A summary of premises and equipment at December 31, 1992 and 1991, follows:
<TABLE>
<CAPTION>
1992 1991
<S> <C> <C>
Land $ 2,832,249 $ 2,904,764
Premises and Improvements 9,090,929 9,294,126
Furniture and Equipment 4,361,568 5,632,748
Total Cost 16,284,746 17,831,638
Less Accumulated Depreciation 3,314,256 4,099,007
Total $12,970,490 13,732,631
</TABLE>
The charges for depreciation and amortization expense for 1992, 1991, and
1990 were $1,309,138, $1,251,862, and $1,155,534, respectively. Occupancy
expense has been reduced by $23,608 in 1992, $71,307 in 1991, and $79,534
in 1990 for rental income from leased premises.
7. Deposits
Under "SFAS No. 107," the fair value of deposits with no stated maturity,
such as noninterest-bearing demand deposits, savings, and NOW accounts, and
money market and checking accounts, is equal to the amount payable on
demand as of December 31, 1992. The fair value of certificates of deposits
is based on the discounted value of contractual cash flows. The discount
rate is estimated using the rates currently offered for deposits of similar
remaining maturities.
B-47
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
<TABLE>
<CAPTION>
Carrying Estimated
At December 31, 1992 Amount Fair Value
<S> <C> <C>
Non-interest bearing demand $ 99,203,438 $ 99,203,438
Savings, NOW and Money Market Accounts 206,535,968 206,535,968
Time deposits:
Maturing in six months or less 79,388,978 80,284,000
Maturing between six months and one year 24,340,112 24,551,000
Maturing between one and three years 14,420,876 14,520,000
Maturing beyond three years 35,772,042 36,752,000
</TABLE>
The fair value estimates above do not include the benefit that results from
the low-cost funding provided by the deposit liabilities compared to the
cost of borrowing funds in the market.
8. Other Short-Term Borrowings
Other short-term borrowings at December 31, 1992 and 1991, represent
floating rate senior notes secured by substantially all the shares of the
stock of the Corporation's bank subsidiaries. At December 31, 1992, such
borrowings were governed by an agreement under which the aggregate book
value, as defined, of the bank stock pledged as collateral may not be less
than $30,000,000. The terms further require that each bank subsidiary
maintain a capital to asset ratio of generally not less than 6.00%. The
Corporation is in compliance with theses loan provisions. Prior approval
of the lender is required for the Corporation to redeem its Series A
Preferred Stock or to be a party to any merger or consolidation. The notes
outstanding at December 31, 1992, are due on March 31, 1993, and they bear
interest at the prime rate. Under "SFAS No. 107," the carrying amounts
approximate their fair value amounts because of their terms.
9. Retirement Plans
Effective January 1, 1989, the Corporation combined the profit sharing and
retirement plans of the subsidiary banks into the EdgeMark Financial
Corporation Employee Benefit and Income Plan (the "Plan") sponsored by the
Corporation. The Plan is a trusteed defined contribution plan covering
substantially all employees. Employees may elect to make a salary
reduction contribution in any percentage permitted by the Plan
administrator up to a maximum of 15.00% of their compensation or up to the
maximum amount permitted by tax law per calendar year. The Board of
Directors of each individual bank determines the amount of the bank's
profits, if any, that will be contributed to the Plan for the fiscal year.
The amount contributed by a bank for a fiscal year cannot be more than
15.00% of the compensation paid to all members of the Plan at the bank for
B-48
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
the fiscal year. Charges to expense with respect to the Plan were
$120,000, $144,980, and $145,000 in 1992, 1991, and 1990, respectively.
Included as a component of the Plan is an employee savings incentive plan
under Section 401(k) of the Internal Revenue Code. Effective January 1,
1992, the Corporation makes a matching contribution of 25.00% of the first
3.00% contributed by each employee, on a pre-tax basis. Employer
contributions in 1992 were $32,758. All participants are 100.00% vested in
their account balances and are able to direct the investment of their
savings into several investment options.
10. Income Taxes
The components of income tax expense for the years ended December 31, 1992,
1991, and 1990 follows:
<TABLE>
<CAPTION>
1992 1991 1990
<S> <C> <C> <C>
Federal:
Current $ 87,683 $ 961,809 $ 438,262
Deferred (87,683) (307,303) (136,145)
Provision in Lieu of Taxes 9,403
Total Federal 663,909 302,117
State
Total $ 0 $ 663,909 $ 302,117
</TABLE>
The provision (credit) for deferred Federal income taxes resulted from the
following:
<TABLE>
<CAPTION>
1992 1991 1990
<S> <C> <C> <C>
Income and Expense Items Recognized
pm a Cash Basis for Tax Purposes $ $ $(25,681)
Loan Losses (386,027) (552,055) (42,901)
Accretion of Discount on Purchased Loans 251,213 (40,147)
Depreciation and Amortization of Premises
and Equipment 36,014 107 32,878
Restructuring Charges (400,565)
Alternative Minimum Tax ("AMT") (87,683) (5,864) (10,036)
Unrecognized Deferred Tax Benefits
Related to Taxes Payable under
the AMT System 821,353
Other, Net (70,775) (704) (50,258)
Total $(87,683) $(307,303) $(136,145)
</TABLE>
B-49
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Accumulated net Federal deferred income tax assets of approximately
$960,000 and $870,000 were included in interest receivable and other assets
at December 31, 1992 and 1991, respectively.
Income tax expense in the accompanying Consolidated Financial Statements
has been provided at effective rates of 0.00% in 1992, 18.00% in 1991, and
9.88% in 1990. These rates differ from statutory Federal income tax rates.
A reconciliation of the Federal statutory income tax rate to the effective
income tax rate follows:
<TABLE>
<CAPTION>
1992 1991 1990
<S> <C> <C> <C> <C> <C> <C>
Federal Income Tax at
Statutory Rate $(926,540) (34.00)% $1,254,213 34.00% $1,039,808 34.00%
Increase (Decrease) Resulting From:
Tax-Exempt Interest (550,980) (20.22) (686,880) (18.62) (757,299) (24.76)
Purchase Accounting
Adjustments (37,835) (1.39) (248,315) (6.73) (614,778) (20.10)
Amortization of Costs
in Excess of the Fair
Value of Net Assets
Acquired 271,228 9.95 268,799 7.29 267,632 8.75
Alternative Minimum Tax in Excess
of (Less Than)Regular Tax 58,072 1.57 357,170 11.68
Unrecognized Tax Benefits
Related to Taxes Payable
under the AMT System 1,231,587 45.20
Other, Net 12,540 0.46 18,020 0.49 9,584 0.31
Effective Income Tax $ 0 0.00% $ 663,909 18.00% $ 302,117 9.88%
</TABLE>
At December 31, 1992, the Corporation for Federal tax purposes has
available a net operating loss carryforward of approximately $1,200,000 and
also has investment tax credit carryforwards of approximately $209,000,
obtained with its acquisition of Merchandise in 1988. The Corporation's
net operating loss will expire, if unused, in the year 2007. The
Merchandise investment tax credit carryforwards will expire, if unused,
during various years prior to 2001, and for financial reporting purposes,
any such investment tax credit benefit realized will be treated as a
reduction of the unamortized balance of cost in excess of the fair value of
assets acquired. The 1991 provisions in lieu of income taxes represent
$9,043, of Merchandise pre-acquisition Federal and state carryforward
benefits realized during that year. The Corporation also has approximately
$20,600,000 in State tax net operating loss carryforwards, which will
expire, if unused, during various years prior to 2007.
B-50
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Additionally, the Corporation at December 31, 1992, has available Federal
alternative minimum tax credit carryforwards of approximately $415,000 and
$651,000 for book and tax purposes, respectively.
11. Commitments and Contingent Liabilities
At December 31, 1992, the Corporation and its subsidiaries were obligated
under a number of noncancelable operating leases for land, buildings, and
equipment used primarily for banking purposes. The Corporation leases many
properties under standard real estate leases. Certain leases contain rent
escalation clauses for real estate taxes, insurance, maintenance, and other
operating expenses and renewal option clauses calling for increased
rentals. Charges to expense with respect to all operating leases amounted
to $1,371,977, $1,341,306, and $1,283,385 for 1992, 1991, and 1990,
respectively. The Corporation also incurred operating lease expense
related to various restructuring charges during 1992 (refer to Note 14 for
further discussion). Future minimum rental payments required under
operating leases with remaining noncancelable lease terms in excess of one
year as of December 31, 1992, were as follows:
<TABLE><CAPTION>
<S> <C> <C>
1993 $ 913,827
1994 814,226
1995 814,847
1996 808,186
1997 799,957
1998 and thereafter 2,139,741
Total Minimum Future Rentals $6,290,782
</TABLE>
In connection with banking operations, the Corporation and its subsidiary
banks are subject to pending and threatened legal actions which arise in
the normal course of business. Management, after reviewing with counsel
all such other actions and proceedings pending against or involving the
Corporation and its subsidiaries, considers the aggregate liability or
loss, if any, resulting therefrom will not have a material affect on the
financial position of the Corporation. Presently, the Corporation does not
have any material commitments for capital expenditures, except for
approximately $1,897,000 to expand one of its branch facilities and remodel
one of the main banks.
B-51
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
12. Preferred Stock
Series A Preferred Stock--On December 30, 1988, the Corporation issued
80,000 shares of Series A Preferred Stock with a $100 per share stated
value. Dividends are cumulative and are based on a rate adjusted quarterly
to 125 basis points over the bond equivalent yield of ninety-day AA
Commercial Paper rates. This rate will increase by 75 basis points be-
ginning in 1994 and an additional 100 basis points beginning in 1996. All
such variable rates have an 8.50% floor. Dividend rates are subject to
adjustment in certain events. The applicable rate in effect at
December 31, 1992, was 8.50%. The Series A Stock is redeemable, at any
time, at the option of the Corporation, in whole or in part, at their
stated value plus accrued dividends. The Series A Stock is redeemable, at
any time, at the option of the Corporation, in whole or in part, at their
stated value plus accrued dividends. The Series A Stock has a liquidation
preference equal to the then calculated redemption value. The Corporation
is not permitted to issue any shares of stock ranking senior or in parity
with such shares upon liquidation or as to dividends.
In 1990, in accordance with Staff Accounting Bulletin No. 68 of the U.S.
Securities and Exchange Commission, an increasing rate preferred stock
discount of $589,727 was recorded along with $147,655 of accretion of this
discount. Of the $147,655, $78,377 was attributable to 1990 and $69,278 to
1989. In 1992 and 1991, the accretion of this discount amounted to
$100,311 and $88,667, respectively.
13. Common Stock
Incentive Stock Option Plan--Pursuant to the 1987 Stock Option Plan, the
Board of Directors may grant incentive stock options and nonqualified stock
options covering an aggregate of 40,000 shares of common stock to key
managerial employees of the Corporation. The initial purchase price for
each share of Common Stock under an incentive stock option is generally
100.00% of the fair market value on the date the option is granted. Such
options are generally exercisable over a ten-year period starting at the
date of award. For employees owning in excess of 10.00% of the
Corporation's Common Stock, the initial purchase price is 110.00% of the
fair market value and the exercise period is five years. The option price
and exercise period under a nonqualified stock option is set at the
discretion of the Board of Directors. No options had been granted prior to
1989.
B-52
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
The table below summarizes certain information relative to these incentive
stock options.
<TABLE>
<CAPTION>
1992 1991
<S> <C> <C>
Outstanding options, beginning of year 33,094 31,547
Granted during the year 5,008 4,547
Exercised during the year
Canceled during the year (12,000) (3,000)
Outstanding options, at end of year,
all exercisable 26,102 33,094
Average Prices:
Granted during the year $ 20.17 $ 20.00
Exercised during the year
Canceled during the year 22.04 22.00
Under option at end of year 20.50 21.75
</TABLE>
Stock Options--During 1989, the Board of Directors granted to the
Corporation's president a nonqualified option to acquire 3,663 shares of
Common Stock for $22.00 per share. A similar option for 60,000 shares at
$22.00 per share was granted in 1988. These options, totaling 63,663
shares, may be exercised between August 3, 1990, and August 3, 1998. These
actions were not pursuant to the 1987 Stock Option Plan and did not affect
the 40,000 shares available for grant thereunder.
In conjunction with its 1988 bank acquisitions, the Corporation assumed an
Option Agreement which will permit the Corporation's president to acquire
27,139 shares of Common Stock for $13.79 per share. This option may be
exercised at any time.
Dividends--Federal banking laws restrict the amount of dividends that can
be paid to the Corporation by its subsidiary banks. The Federal Reserve
Board has indicated that dividends generally should only be paid out of
earnings from continuing operations. Federal regulations regarding the
payment of dividends stipulate the meeting of two different calculations, a
Net Profits Test, and an Undivided Profits Test.
The Net Profits Test requires cash dividend approval of the Federal Reserve
Board by a member bank that in any calendar year ("year") for dividends
that exceed the net profits of the current year, combined with the net
retained profits for the two preceding years. Net retained profits are
calculated by using net income without regard to adding back the provision
for loan losses and deducting actual net charge-offs against the allowance
for loan losses.
B-53
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
The Undivided Profits Test prohibits banks from paying dividends in amounts
greater than undivided profits (as defined) then on hand after deducting
bad debts. Bad debts are defined to include generally the principal amount
of loans which are in arrears to payment of interest for six months or
more.
In addition, the Federal authorities can limit or prohibit dividends if
their payment would constitute an unsafe or unsound banking practice.
The ability of the Corporation to declare or pay common dividends is also
restricted by terms of the Corporation's short-term senior note agreements
(Note 8) and the Series A Preferred Stock dividend preference (Note 12).
At December 31, 1992, all of the Corporation's retained earnings were
restricted.
14. Restructuring Charges
On December 4, 1992, the Corporation announced that it was performing a
facilities consolidation at one of its bank subsidiaries. During the
fourth quarter, a charge to operations of $2,389,707 was recorded. The
primary components of the charge were to provide for a branch facility
closure and consolidation of backroom operations of one bank subsidiary.
The restructuring charge reduced earnings per share $1.64 in 1992.
15. Supplemental Cash Flow Information
The Corporation uses the indirect method to report cash flows from
operating activities. Under this method, net income is adjusted to
reconcile it to net cash flow from operating activities. Net reporting of
cash transactions has been used when the balance sheet items consist
predominantly of maturities of three months or less, or where otherwise
permitted. Other items are reported gross. Cash flows from loans
originated for resale are classified as cash flows from operating
activities. The Corporation reports cash flows from loans made to
customers and principal collected on loans, as well as from interest-
bearing deposits accepted and repaid by its bank subsidiaries, on a net
basis. For purposes of reporting cash flows, cash and cash equivalents
include cash and due from banks, Federal funds sold and interest-bearing
deposits with banks with original terms to maturity of three months or
less.
Approximate cash paid during 1992, 1991, and 1990 for interest totaled
$15,767,467, $21,572,993, and $22,086,460 and for income taxes totaled
$867,021, $625,000, and $333,000, respectively.
Excluded from the 1992 net increase in trading account securities, is a
$14,468,400 non-cash transfer from the investment securities portfolio into
trading account securities.
B-54
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
16. Financial Instruments with Off-Balance Sheet Risk
In the normal course of meeting the financing needs of its customers, the
Corporation is a party to various financial instruments with off-balance
sheet risk. These instruments involve, to varying degrees, elements of
credit risk in excess of the amounts recognized in the Consolidated Balance
Sheets. The contract amounts of these instruments, which are not included
in the Consolidated Balance Sheets, are indicators of the Corporation's ac-
tivities in these particular classes of financial instruments.
Credit risk is the possibility that loss may occur from counterpart failure
to perform according to the terms of the contract. The Corporation's
exposure to credit risk in the event of non-performance by counterparts to
these financial instruments is represented by the contractual amount of the
instruments. Credit risk is controlled through credit approvals, limits,
and monitoring procedures based on the same credit policies used for on-
balance sheet instruments. The amount of collateral obtained, if any, is
based on the nature of the financial instrument and management's credit
evaluation of the counterpart. These financial instruments include
commitments to make loans, commercial and standby letters of credit, and
unused lines of credit.
A summary of the contractual amounts of these financial instruments that
represents off-balance sheet credit risk at December 31, 1992 and 1991,
follows:
<TABLE>
<CAPTION>
1992 1991
<S> <C> <C>
Commitments to extend credit $35,020,453 $46,602,637
Commercial and standby letters of credit 4,634,703 6,155,160
Unused lines of credit 16,341,828 13,678,797
</TABLE>
Commitments to extend credit and lines of credit generally have fixed
expiration dates or other termination clauses and are legally binding
agreements to lend to customers (provided there are no violations of any
conditions in the contracts). Since many commitments are expected to
expire without being drawn upon, the total commitment amounts do not nec-
essarily represent future liquidity requirements. Collateral held, if any,
when extending a line of credit or upon exercise of a loan commitment
varies, but typically includes commercial and residential real estate,
accounts receivable, inventory, and other business and consumer assets.
Commercial letters of credit are issued specifically to facilitate trade or
commerce and are generally secured by the underlying goods. Drafts will be
drawn when the underlying transaction is consummated as intended. Standby
letters of credit are used in various transactions to enhance the credit
standing of the Corporation's customers. Although the Corporation
generally does not expect the beneficiary to draw funds under the standby
letter of credit, it is obligated to pay the beneficiary upon presentation
B-55
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
of a claim that satisfies the terms of the commitment. The purposes of
standby letters of credit include ensurance of contract performance, to
irrevocably assure payment by a customer under supply, service, and
maintenance contracts or construction projects, to provide a payment
mechanism for a customer's third-party obligations, to act as a substitute
for an escrow account and to assure payment of specified financial
obligations of a customer.
The fair value of these financial instruments approximates the recorded
carrying value at December 31, 1992.
17. Parent Company Financial Information
Condensed Financial Information for EdgeMark Financial Corporation (Parent
Company Only) follows:
<TABLE>
Condensed Balance Sheets
<CAPTION>
At December 31, 1992 1991
<S> <C> <C>
Assets:
Cash in Bank $ 257,533 $ 241,539
Investment in Bank Subsidiaries 33,860,479 34,863,327
Premises and Equipment 19,694 14,399
Interest Receivable and Other Assets 972,475 1,043,512
Cost in Excess of Fair Market Value of
Net Assets Acquired 16,752,289 17,550,017
Total Assets $51,862,470 $53,712,794
Liabilities and Stockholders' Equity:
Short-Term Borrowings $13,500,000 $11,500,000
Accrued Expenses and Other Liabilities 500,148 583,868
Stockholders' Equity 37,862,322 41,628,926
Total Liabilities and Stockholders' Equity $51,862,470 $53,712,794
</TABLE>
B-56
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
17. Parent Company Financial Information (continued)
<TABLE>
<CAPTION>
Condensed Statements of Earnings
For the Year Ended December 31, 1992 1991 1990
<S> <C> <C> <C>
Income:
Dividends from Bank Subsidiaries $ 4,885,000 $ 4,856,641 $3,954,790
Interest 1,829 38,901 22,612
Net Accretion of Purchase Accounting
Adjustments 111,281 534,244 641,876
Other income 2,705 189,000
Total Income 5,000,815 5,429,786 4,808,278
Expense:
Interest 730,056 1,153,417 1,400,625
Amortization of Cost in Excess of
the Fair Value of Net Assets
Acquired 797,728 790,584 790,584
Other Expense 2,328,950 2,697,263 1,804,613
Total Expense 3,856,734 4,641,264 3,995,822
Income Before Income Tax Benefit and
Equity Earnings 1,144,081 788,522 812,456
Applicable Income Tax Benefit 745,678 1,116,488 874,967
Income of Parent Company Only 1,889,759 1,905,010 1,687,423
Equity in Undistributed Income (Loss)
of Bank Subsidiaries (4,614,128) 1,093,246 1,065,290
Net Income (Loss) $(2,724,369) $2,998,256 $2,752,713
</TABLE>
B-57
17. Parent Company Financial Information (continued)
<TABLE>
<CAPTION>
Condensed Statements of Cash Flows For the Year Ended December 31, 1992 1991 1990
<S> <C> <C> <C>
Cash Flows from Operating Activities:
Net Income (Loss) $(2,724,369) $ 2,998,256 $ 2,752,713
Adjustments to Reconcile Net Income to Net Cash from
Operating Activities:
Equity in Undistributed Income (Loss) of Bank Subsidiaries 4,614,128 (1,093,246) (1,065,290)
Depreciation, Amortization and Accretion 698,094 263,970 155,135
Deferred Income Tax Benefit (87,683) (307,303) (136,145)
Provision in Lieu of Income Taxes 9,403
Decrease (Increase) in Interest Receivable and Other Assets 158,720 314,539 (73,015)
(Decrease) Increase in Accrued Expenses and Other Liabilities (83,720) 423,259 143,642
Net Cash from Operating Activities 2,575,170 2,608,878 1,777,040
Cash Flows from Investing Activities:
Capital Contributed to Subsidiary (3,500,000)
Purchase of Equipment (16,942) (6,056) (7,600)
Net Cash from Investing Activities (3,516,942) (6,056) (7,600)
Cash Flows from Financing Activities:
Proceeds from Issuance of Other Short-Term Borrowings 15,000,000 13,000,000
Repayment of Other Short-Term Borrowings (13,000,000) (1,500,000)
Repayment of Equity Commitment Notes (3,600,000)
Repayment of Long-Term Debt (9,400,000) (500,000)
Net Proceeds from Exercise of Stock Options and Sale of Treasury Stock 5,280 50,006
Preferred Stock Dividends Paid (680,000) (700,400) (782,199)
Common Stock Dividends Paid (362,235) (362,235) (361,606)
Net Cash from (Used for) Financing Activities 957,765 (2,557,355) (1,593,799)
Net Increase in Cash and Cash Equivalents 15,994 45,467 175,641
Cash and Cash Equivalents, Beginning of Year 241,539 196,072 20,431
Cash and Cash Equivalents, End of Year $ 257,533 $ 241,539 $ 196,072
B-58
<FN>
Certain restrictions exist regarding the extent to which the Corporation's banks subsidiaries may transfer funds to the
Corporation in the form of dividends, loans, or advances. Federal law prevents the Corporation from borrowing from a bank
subsidiary unless the loans are secured by specific obligations. Further, these secured loans which may be made by the subsidiary
bank are generally limited to 10.00% of the bank's equity to the Corporation. Payment of dividends to the Corporation by
subsidiary banks is subject to various limitations by bank regulatory agencies and by requirements to maintain certain capital to
asset ratios under the Corporation's senior note agreements (Note 8). At December 31, 1992, substantially all of the retained
earnings of the bank subsidiaries were restricted.
</TABLE>
B-59
DIRECTORS AND OFFICERS
EdgeMark Financial Corporation
Directors:
Roger A. Anderson
Chairman of the Board;
President, Bellevue Builders, Inc.
Stephen J. Bloom
Vice President--Corporate Sales,
Philip Morris USA
Charles A. Bruning
President & CEO;
President & CEO,
Merchandise National Bank
Jerry G. Glashagel
Senior Partner, Global Edge, Inc.
Wayne L. Haraldson
Chief Executive Officer,
Scientific Metal Treating Company
Derek N. G. Metcalf
Chairman of the Board,
Athena Industries, Inc.
Robert A. Podesta
Vice Chairman of the Board,
Network Financial Services, Inc.
William H. Pokorny, Sr.
Attorney, Pokorny & Associates, Ltd.
Eugene J. Wozniak, Sr.
President, Gencar, Inc.
Officers:
Roger A. Anderson
Chairman of the Board
Charles A. Bruning
President & CEO
Edward J. Kollmann
Executive Vice President--Treasurer
B-60
Frank P. Novel
Executive Vice President--
Chief Administrative Officer
Ruth H. Carroll
Senior Vice President--Director of Marketing
Jean E. Marshall-Dennis
Senior Vice President--Corporate Secretary
Xiomara C. Metcalfe
Senior Vice President--
Director of Human Resources
Alexander A. Stankiewicz
Senior Vice President--Chief Credit Officer
Laurence A. Avignone
Vice President--Auditing
Charles L. Lanzrath
Vice President--Chief Financial Officer
Daniel J. McGarry
Vice President--Financial Services
Robin A. Slas
Vice President--Executive Administration
Ervin E. Gramit
Assistant Vice President--Financial Services
Thad E. Stewart
Assistant Vice President--Auditing
Yolanda Stoffregen
Assistant Vice President--
Corporate Trainer
Merchandise National Bank
Directors:
Roger A. Anderson
Chairman of the Board;
President, Bellevue Builders, Inc.
B-61
Lawrence B. Aaron
President & CEO,
Great American Finance Company
Charles A. Bruning
President & CEO,
Merchandise National Bank
Derek N. G. Metcalf
Chairman of the Board,
Athena Industries, Inc.
Robert A. Podesta
Vice Chairman of the Board,
Network Financial Services, Inc.
Hedric E. Rhodes
President & CEO
Griffith Laboratories, Inc.
Clem Stein, Jr.
Chairman of the Board and Founder, International
Academy of Merchandising & Design, Ltd.
Eugene J. Wozniak, Sr.
President, Gencar, Inc.
Officers:
Roger A. Anderson
Chairman of the Board
Charles A. Bruning
President & CEO
Frank P. Novel
Executive Vice President--
Chief Administrative Officer
Ruth H. Carroll
Senior Vice President--Director of Marketing
Xiomara C. Metcalfe
Senior Vice President--
Director of Human Resources
William F. Schraeder II
Senior Vice President & Cashier,
Compliance Officer
B-62
Alexander A. Stankiewicz
Senior Vice President--Chief Credit Officer
Kelly F. Armstrong
Vice President--Retail Banking Manager
Lisa C. Kirk
Vice President--Commercial Lending
Barbara J. Linthicum
Vice President--Commercial Lending
Robin A. Slas
Vice President--Executive Administration
Angela M. Carlson
Assistant Vice President--
Mart Office Manager
Craig S. Brannen
Assistant Vice President--
Commercial Lending
Carla J. Salerno
Assistant Vice President--
Loan Review
Mary K. Walsh
Retail Lending Officer
Denise Robinson
Retail Lending Officer
Ronna Bartalone
Assistant Cashier--
Bookkeeping/Proof Manager
Gail Stephens
Assistant Cashier--
Mart Center Teller Manager
Shirley Walker-Thomas
Assistant Cashier--Near North Office
Assistant Branch Manager
Judy K. Parvin
Assistant Compliance/CRA Officer
Colleen B. Burke
Financial Services Officer
B-63
Dennis R. Lingle
Financial Services Officer
Edgewood Bank
Directors:
Roger A. Anderson
Chairman of the Board;
President, Bellevue Builders, Inc.
Charles A. Bruning
Vice Chairman of the Board;
President & CEO,
EdgeMark Financial Corporation
Jerry G. Glashagel
Senior Partner, Global Edge, Inc.
Wayne L. Haraldson
Chief Executive Officer,
Scientific Metal Treating Company
Kenneth C. McPherson
President & CEO, Edgewood Bank
Derek N. G. Metcalf
Chairman of the Board,
Athena Industries, Inc.
William H. Pokorny, Sr.
Attorney; Pokorny & Associates, Ltd.
Eugene J. Wozniak, Sr.
President, Gencar, Inc.
Officers:
Roger A. Anderson
Chairman of the Board
Charles A. Bruning
Vice Chairman of the Board
Kenneth C. McPherson
President & CEO
Edward J. Kollmann
Executive Vice President, Cashier,
Compliance & Security Officer
B-64
Michael P. Keenan
Senior Vice President--CRA Officer,
Assistant Trust Officer
Taylor H. Jaeger
Vice President--Loan Department Manager,
Assistant Trust Officer
Richard J. Stefanski
Vice President--Indirect Lending
Peggy Economos
Assistant Vice President--Manager Personal Banking,
Assistant Secretary
Mona L. Hook
Assistant Vice President & Controller
W. Alan Lawrence
Assistant Vice President--Loan Department
Juli A. Rude
Assistant Vice President, Assistant
Compliance & Security Officer,
Assistant Secretary
Joseph E. Zahradnik
Assistant Vice President--Indirect Lending
Gina M. Cunningham
Assistant Cashier--Manager Woodridge Office,
Assistant Security Officer
N. Helen McDonald
Assistant Cashier--Teller Division,
Bank Secrecy Act Officer
Bruce Gottermeyer
Loan Officer
Constance O. Malmquist
Land Trust Officer
M. June Cerwin
Operations Officer
Elandon McSwine
Operations Officer--Indirect Lending
B-65
Carolyn A. Sowell
Assistant Branch Manager--Woodridge Office
Judith Sumka
Financial Services Officer
Jean E. Marshall-Dennis
Secretary
EdgeMark Bank Lombard
Directors:
Charles A. Bruning
Chairman of the Board;
President & CEO,
EdgeMark Financial Corporation
J.D. Bergman
President, J.D. Bergman Corporation
Stephen J. Bloom
Vice President--Corporate Sales,
Philip Morris USA
Jerry G. Glashagel
Senior Partner, Global Edge, Inc.
Wayne L. Haraldson
Chief Executive Officer,
Scientific Metal Treating Company
Robert C. Iorii, Sr.
President & CEO, EdgeMark Bank Lombard
Donald H. Johnson
President, D.H. Johnson Company
Eugene J. Wozniak, Sr.
President, Gencar, Inc.
Officers:
Charles A. Bruning
Chairman of the Board
Robert C. Iorri, Sr.
President & CEO
B-66
John L. McCamman
Senior Vice President--Lending Division
Suzanne E. Emerson
Vice President--Branch Manager
Paul J. Jarosz
Vice President & Cashier,
Compliance Officer
Diane E. Kralicek
Vice President--Operations & Marketing
Marilyn A. Benson
Assistant Vice President--Consumer Loans
Michael J. Schutz
Assistant Vice President--Lending Division
Diane E. Caluwe
Personal Banking Manager
Janice D'Ambrosia
Teller Manager
Sandra A. Larsen
Loan Officer
D. Bradley Springer
Loan Officer-EdgeMark Mortgage Division
Mark D. Thorpe
Loan Officer-EdgeMark Mortgage Division
First National Bank of Lockport
Directors:
Charles A. Bruning
Chairman of the Board;
President & CEO,
EdgeMark Financial Corporation
Eugene J. Burla
President, Frank Burla & Sons Builders, Inc.
Joseph C. Fitzgerald
B-67
Attorney, McKeown, Fitzgerald, Zollner,
Buck, Hutchison & Ruttle
Amin Khater, M.D.
President, Will County Association for
Obstetrics & Gynecology, Ltd.
John G. Marich
President, Insituform Midwest, Inc.
Edward D. Mayes
Past President, Merrill Chicago
William H. Pokorny, Sr.
Attorney; Pokorny & Associates, Ltd.
William J. Sabo
President, Empress River Casino
John R. Solin
Insurance Consultant, Morency; Weible
& Sapa, Inc.
Joseph J. Wallace III
President & CEO,
First National Bank of Lockport
Officers:
Charles A. Bruning
Chairman of the Board
Joseph J. Wallace III
President & CEO
Betty A. Woock
Senior Vice President--Operations,
Corporate Secretary
Nina R. Beavers
Vice President--Operations
Patricia A. Wallace
Vice President & Cashier
Theodore W. Ziegler
Vice President--Personal Banking
Vida K. Lieponis
Assistant Vice President--
Real Estate Loans
B-68
Carrie L. Sapata
Assistant Vice President
Donna J. Wroblewski
Trust Officer
EdgeMark Bank Rosemont
Directors:
Charles A. Bruning
Chairman of the Board;
President & CEO,
EdgeMark Financial Corporation
Roger A. Anderson
Vice Chairman of the Board;
President, Bellevue Builders, Inc.
Steven D. Bandolik
Principal, Bennett & Kahnweiler, Inc.
Joseph W. Dennis
Insurance Consultant,
Affiliated Insurance Consultants, Inc.
Jerry G. Glashagel
Senior Partner, Global Edge, Inc.
Wayne L. Haraldson
Chief Executive Officer,
Scientific Metal Treating Company
Derek N. G. Metcalf
Chairman of the Board,
Athena Industries, Inc.
Robert J. Nemec, Jr.
President & CEO,
EdgeMark Bank Rosemont
B-69
Robert A. Podesta
Vice Chairman of the Board,
Network Financial Services, Inc.
William E. Ryan
Attorney; Burke and Ryan
Officers:
Charles A. Bruning
Chairman of the Board
Roger A. Anderson
Vice Chairman of the Board
Robert J. Nemec, Jr.
President & CEO
Kathleen I. Spero
Vice President & Cashier
Donna J. Kamin
Assistant Cashier
B-70
CORPORATE INFORMATION
Corporate Offices
EdgeMark Financial Corporation
Merchandise Mart Plaza, Suite 2400
P.O. Box 3436
Chicago, Illinois 60654
Transfer Agent & Registrar
Harris Trust & Savings Bank
Shareholder Services
311 West Monroe, 11th Floor
Chicago, IL 60603
Stock Listing
EdgeMark Financial Corporation's Common Stock trades on The NASDAQ Small-
Cap Market, under the ticker symbol EDGE.
In addition, EdgeMark Financial Corporation Stock is listed and traded
through The Chicago Corporation, 208 South LaSalle Street, Chicago,
Illinois 60604, 312-855-7600 and Kemper Securities Group, Inc., 77 West
Wacker Drive, Chicago, Illinois 60601, 312-574-6218.
Annual Meeting
The Annual Meeting of Stockholders will be held on Monday, April 19, 1993,
at 11:00 a.m., in the Riverway Auditorium, Riverway Development, 6133 North
River Road, Rosemont, Illinois. Those unable to attend are urged to
exercise their right to vote by returning the proxy sent to them in the
mail.
Stock Transfer Matters/Change of Address
EdgeMark Financial Corporation investors seeking information on stock
transfers, dividend reinvestments, change of address and lost stock
certificates should contact:
Harris Trust & Savings Bank
Shareholder Services
311 West Monroe Street, 11th Floor
P.O. Box 755
Chicago, Illinois 60690
312-461-6834 or 312-461-6879
(between the hours of 8:30 a.m. and 4:30 p.m.)
Investor Relations
Stockholders, analysts, and other members of the investment community
seeking further information or a copy of the Corporation's Annual Report
you may write or call:
B-71
Robin A. Slas
Vice President
EdgeMark Financial Corporation
P.O. Box 3436
Chicago, Illinois 60654
312-836-8000
Form 10-K
EdgeMark Financial Corporation files an Annual Report on Form 10-K with the
U.S. Securities and Exchange Commission. A copy of this report may be
obtained without charge by writing to Robin A. Slas at the address
indicated above.
Automatic Dividend Reinvestment and Stock Purchase Program
EdgeMark Financial Corporation offers stockholders a no-cost plan for
automatically reinvesting dividends and making cash purchases of its stock
through its Dividend Reinvestment and Stock Purchase Program. Information
may be obtained by writing or calling the Corporation's Transfer Agent,
Harris Trust & Savings Bank, listed on this page.
Disclaimer Notice
Pursuant to the Rules and Regulations of the Federal Deposit Insurance
Corporation and Office of the Comptroller of the Currency, specifically 12
CFR Part 350 and 12 CFR Part 18, respectively. Disclosure of Financial and
Other Information, it should be noted that "this statement has not been
reviewed, or confirmed for accuracy or relevances by the Federal Deposit
Insurance Corporation or the Office of the Comptroller of the Currency."
Principal Subsidiaries
Merchandise National Bank
Edgewood Bank
EdgeMark Bank Lombard
First National of Lockport
EdgeMark Bank Rosemont
B-72
EdgeMark Financial Corporation
Merchandise Mart Plaza, Suite 2400
Chicago, Illinois 60654
312-836-8000
Subsidiary Banks:
Merchandise National Bank
Merchandise Mart Plaza
Chicago, Illinois 60654
312-836-8000
1536 North Clark Street
Chicago, Illinois 60610
312-280-8008
Edgewood Bank
1023 West 55th Street
Countryside, Illinois 60525
708-352-8980
7515 Janes Avenue
Woodridge, Illinois 60517
708-985-6700
EdgeMark Bank Lombard
211 West St. Charles Road
Lombard, Illinois 60148
708-627-3100
505 West Roosevelt Road
Lombard, Illinois 60148
708-620-6610
First National Bank of Lockport
800 South State Street
Lockport, Illinois 60441
815-838-2000
EdgeMark Bank Rosemont
6111 North River Road
Rosemont, Illinois 60018
708-828-3343
All EdgeMark Financial Corporation Banks are members of the Federal Deposit
Insurance Corporation.
B-73
FINANCIAL HIGHLIGHTS
<TABLE>
EdgeMark Financial Corporation and Subsidiaries
<CAPTION>
As of or for the years ended Percent
December 31, 1992 1991 Change
<S> <C> <C> <C>
Earnings
Total Interest Income $ 37,457,180 $ 41,615,321 (9.99)%
Total Interest Expense 15,222,111 21,439,941 (29.00)
Net Interest Income 22,235,069 20,175,380 10.21
Provision for Loan Losses 5,485,593 2,661,681 106.10
Net Income (Loss) (2,724,369) 2,998,256 (190.87)
Averages for the Year
Loans, Net of Unearned Income $339,558,858 $311,791,702 8.91%
Allowance for Loan Losses 4,285,843 3,242,008 32.20
Investment Securities 96,816,655 110,209,454 (12.15)
Trading Account Securities 2,497,619 100.00
Assets 522,757,420 505,707,026 3.37
Deposits 461,517,936 445,889,903 3.50
Short-Term Borrowings 11,459,677 8,615,558 33.01
Long-Term Borrowings 5,630,000 (100.00)
Stockholders' Equity 42,584,738 40,407,669 5.39
At Year-End
Loans, Net of Unearned Income $338,335,233 $329,206,459 2.77%
Allowance for Loan Losses 5,022,616 4,446,093 12.97
Investment Securities 78,512,121 119,522,336 (34.31)
Trading Account Securities 23,420,587 100.00
Assets 516,071,198 516,943,125 (0.17)
Deposits 459,661,414 456,988,585 0.58
Short-Term Borrowings 13,870,000 14,250,000 (2.67)
Stockholders' Equity 37,862,322 41,628,926 (9.05)
Common Share Data
Net Income (Loss) $ (2.41) $ 1.51 (259.60)%
Net Book Value 20.70 23.28 (11.08)
Market Value 16.00 18.00 (11.11)
Cash Dividends Declared 0.25 0.25
Selected Ratios (At Year-End)
Return on Average Assets (0.52)% 0.59%
Return on Average Equity (6.40) 7.42
Allowance to Loans, Net of Unearned
Income 1.48 1.35
Allowance to Nonperforming Loans 118.70 98.41
B-74
Capital Ratios at Year-End
Common Stockholders' Equity to Assets 5.84% 6.57%
Total Stockholders' Equity to Assets 7.34 8.05
Tier 1 Risk-Based Capital Ratio 6.24 7.26
Total Risk-Based Capital Ratio 7.72 8.57
Leverage Ratio 4.09 4.52
Nonfinancial Data (Year-End)
Number of Employees 295 277
Number of Full-Time Equivalents 264 254
Number of Stockholders 529 538
</TABLE>
B-75
APPENDIX C
EDGEMARK FINANCIAL CORPORATION
UNAUDITED FINANCIAL STATEMENTS AND
MANAGEMENT'S DISCUSSION AND ANALYSIS
Appendix C contains unaudited financial statements as of September 30, 1993,
and December 31, 1992, and for periods ended September 30, 1993 and 1992, and
management's discussion and analysis of those financial statements.
APPENDIX C
<TABLE>
EDGEMARK FINANCIAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<CAPTION>
September 30, 1993 December 31,
(Unaudited) 1992
Assets
<S> <C> <C>
Cash and Due from Banks $ 32,558,517 $ 38,240,421
Federal Funds Sold 21,870,000 5,400,000
Cash and Cash Equivalents 54,428,517 43,640,421
Trading Account Securities 23,118,938 23,420,587
Investment Securities (market value at 1993-$87,318,615;
1992-$81,504,934) 82,977,813 78,512,121
Loans 354,524,231 351,200,861
Less: Unearned Income (13,311,147) (12,865,628)
Allowance for Loan Losses (6,300,980) (5,022,616)
Net Loans 334,912,104 333,312,617
Premises and Equipment, Net 12,652,657 12,970,490
Interest Receivable and Other Assets 9,555,008 7,462,673
Cost in Excess of the Fair Value of Net Assets Acquired
(Net of accumulated amortization in 1993-$3,570,587;
1992-$3,171,723) 16,153,993 16,752,289
Total Assets $533,799,030 $ 516,071,198
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES
Deposits:
Demand $ 95,154,942 $ 99,203,438
Savings, NOW and Money Market Accounts 230,519,747 206,535,968
Time Deposits 148,730,769 153,922,008
Total Deposits 474,405,458 459,661,414
Federal Funds Purchased and Securities Sold
under Agreements to Repurchase 2,000,000 370,000
Accrued Expenses and Other Liabilities 3,469,156 4,677,462
Other Short-Term Borrowings
Other Long-Term Debt 13,500,000 13,500,000
Total Liabilities 493,374,614 478,208,876
Commitments and Contingent Liabilities
C-1
STOCKHOLDERS' EQUITY
Preferred Stock-authorized 200,000 shares of no par value,
80,000 shares of Series A Preferred Stock ($100 stated
value) issued and outstanding 7,830,691 7,746,906
Common Stock-authorized 6,000,000 shares of $1.00 par value,
shares issued 1,576,872 1,576,872 1,576,872
Surplus 25,614,966 25,614,966
Retained Earnings 6,521,284 4,042,975
Less: Treasury Stock at Cost (shares in 1993-127,933;
1992-127,933) (1,119,397) (1,119,397)
Total Stockholders' Equity 40,424,416 37,862,322
Total Liabilities and Stockholders' Equity $533,799,030 $ 516,071,198
<FN>
See Accompanying Notes to Consolidated Financial Statements.
</TABLE>
C-2
EDGEMARK FINANCIAL CORPORATION AND SUBSIDIARIES
STATEMENTS OF CONSOLIDATED EARNINGS
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1993 1992
<S> <C> <C>
INTEREST INCOME
Loans, including fees $ 21,169,831 $ 22,931,685
Deposits with Banks
Federal Funds Sold 549,821 505,709
Trading Account Securities 632,820
Investment Securities:
Taxable 3,139,421 3,756,861
Exempt from Federal Income Tax 1,043,820 1,216,752
Total Interest Income $ 26,535,713 $ 28,411,007
INTEREST EXPENSE
Deposits 8,655,764 11,276,373
Federal Funds Purchased and Repurchase Agreements 121,391 87,179
Other Short-Term Borrowings 614,250 554,556
Long-Term Debt and Equity Commitment Note
Total Interest Expense 9,391,405 11,918,108
Net Interest Income 17,144,308 16,492,899
Provision for Loan Losses 1,628,000 2,666,583
Net Interest Income After Provision for Loan Losses 15,516,308 13,826,316
OTHER INCOME
Service Charges on Deposit Accounts 1,851,327 1,841,327
Net Securities Gains (Losses) (2,027) 489,188
Trading Account Gains 600,115 13,949
Net Gain on Sale of Loans
C-3
Mortgage Brokerage Fees 3,286,582 2,291,502
Other 656,365 638,599
Total Other Income 6,392,362 5,274,565
OTHER EXPENSE
Salaries and Employee Benefits 8,593,323 7,790,773
Net Occupancy Expense 1,776,496 1,933,841
Furniture and Equipment 983,955 1,058,470
Data Processing 1,113,985 1,037,931
Marketing 501,182 460,512
Stationery and Supplies 299,533 300,361
Insurance 929,119 957,742
Directors' Fees 299,152 267,222
Legal 264,159 343,863
Mail and Courier 376,099 372,569
Amortization of Cost in Excess of the Fair Value of
Net Assets Acquired 598,296 598,296
Restructuring Charges
Other 2,362,366 2,012,328
Total Other Expense 18,097,665 17,133,908
Income Before Income Taxes 3,811,005 1,966,973
Applicable Income Taxes 764,017 435,403
Net Income $ 3,046,988 $ 1,531,570
Net Income Applicable to Common Stock $ 2,453,203 $ 947,509
Net Income Per Common and Common Equivalent Share $ 1.68 $ 0.65
Weighted Average Common and Common Share Equivalents
Outstanding 1,456,495 1,454,487
<FN>
See Accompanying Notes to Consolidated Financial Statements.
</TABLE>
C-4
EDGEMARK FINANCIAL CORPORATION AND SUBSIDIARIES STATEMENTS OF CONSOLIDATED
EARNINGS
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED SEPTEMBER 30, 1993 1992
<S> <C> <C>
INTEREST INCOME
Loans, including fees $ 7,014,204 $ 7,490,567
Deposits with Banks
Federal Funds Sold 156,704 170,924
Trading Account Securities 198,007
Investment Securities:
Taxable 1,136,651 1,176,603
Exempt from Federal Income Tax 333,089 389,533
Total Interest Income $ 8,838,655 $ 9,227,627
INTEREST EXPENSE
Deposits 2,891,780 3,435,476
Federal Funds Purchased and Repurchase Agreements 12,185 31,418
Other Short-Term Borrowings 204,750 176,653
Long-Term Debt and Equity Commitment Note
Total Interest Expense 3,108,715 3,643,547
Net Interest Income 5,729,940 5,584,080
Provision for Loan Losses 240,000 767,750
Net Interest Income After Provision for Loan Losses 5,489,940 4,816,330
OTHER INCOME
Service Charges on Deposit Accounts 614,745 627,169
Net Securities (Losses) (34) 316,931
Trading Account Gains 157,988 13,949
C-5
Net Gains on Sale of Loans
Mortgage Brokerage Fees 1,169,766 880,798
Other 197,987 187,442
Total Other Income 2,140,452 2,026,289
OTHER EXPENSE
Salaries and Employee Benefits 2,950,269 2,581,903
Net Occupancy Expense 575,771 638,642
Furniture and Equipment 328,710 367,096
Data Processing 375,594 353,055
Marketing 194,729 211,489
Stationery and Supplies 98,777 101,630
Insurance 313,136 309,880
Directors' Fees 100,398 89,361
Legal 92,729 114,721
Mail and Courier 126,084 124,138
Amortization of Cost in Excess of the Fair Value of Net
Assets Acquired 199,432 199,432
Restructuring Charges
Other 842,129 783,998
Total Other Expense 6,197,758 5,875,345
Income Before Income Taxes 1,432,634 967,274
Applicable Income Taxes 318,115 208,961
Net Income $ 1,114,519 $ 758,313
Net Income Applicable to Common Stock $ 915,725 $ 562,861
Net Income Per Common and Common Equivalent Share $ 0.62 $ 0.38
Weighted Average Common and Common Share Equivalents
Outstanding 1,458,188 1,454,692
<FN>
See Accompanying Notes to Consolidated Financial Statements.
</TABLE>
C-6
EDGEMARK FINANCIAL CORPORATION AND SUBSIDIARIES STATEMENTS OF CONSOLIDATED CASH
FLOWS(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1993 1992
<S> <C> <C>
Cash Flows from Operating Activities:
Net Income $ 3,046,989 $ 1,531,570
Adjustments to Reconcile Net Income to Net Cash from
Operating Activities:
Provision for Loan Losses 1,628,000 2,666,583
Amortization of Cost in Excess of the Fair Value of
Net Assets Acquired 598,296 598,296
Depreciation, Amortization and Accretion 1,062,262 1,434,599
Net Securities (Gains) Losses 2,027 (489,188)
Net Increase in Trading Account Securities 301,649 (9,344,062)
Net Trading Account Securities (Gains) (600,115)
Net Gain on Loan Sales
Mortgage Loans Originated (152,227,032) (107,899,690)
Mortgage Loans Sold 152,973,854 105,545,177
Equity Earnings
Deferred Income Tax Benefit (100,103) (213,821)
Provision in Lieu of Income Taxes
Decrease in Interest Receivable and Other Assets (2,007,232) (590,160)
Increase (Decrease) in Accrued Expenses and Other Liabilities (1,023,307) 1,017,971
Net Cash from Operating Activities 3,655,288 (5,742,725)
Cash Flows from Investing Activities:
Purchase of Investment Securities (12,304,974) (76,872,581)
Proceeds from Sales of Investment Securities 215,000 75,277,147
Proceeds from Maturities of Investment Securities 7,928,751 29,563,058
Net (Increase) in Loans (3,692,131) (18,678,550)
Purchase of Premises and Equipment, Net (808,691) (1,599,669)
Net Cash from Investing Activities (8,662,045) 7,689,405
Cash Flows from Financing Activities:
C-7
Net Increase (Decrease) in Deposits 14,819,747 10,640,025
Net Increase (Decrease) in Federal Funds Purchased and
Securities Sold Under Agreements to Repurchase 1,630,000 2,980,000
Proceeds from Issuance of Other Short-Term Borrowings 13,500,000 11,500,000
Repayment of Other Short-Term Borrowings (13,500,000) (11,500,000)
Proceeds from Issuance of Equity Commitment Notes
Repayment of Equity Commitment Notes
Proceeds from Issuance of Other Long-Term Debt
Repayment of Long-Term Debt
Proceeds from Sale of Preferred Stock
Net Proceeds from Sale of Common Stock
Net Proceeds from Exercise of Options and Sale of Treasury Stock
Preferred Stock Dividends Paid (510,000) (510,000)
Common Stock Dividends Paid (144,894) (144,894)
Net Cash from Financing Activities 15,794,853 12,965,131
Net Increase in Cash and Cash Equivalents 10,788,096 14,911,811
Cash and Cash Equivalents, January 1 43,640,421 34,648,387
Cash and Cash Equivalents, September 30 $ 54,428,517 $ 49,560,198
<FN>
See Accompanying Notes to Consolidated Financial Statements.
</TABLE>
C-8
EDGEMARK FINANCIAL CORPORATION AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS(UNAUDITED)
1. The consolidated financial statements include the accounts of EdgeMark
Financial Corporation and its subsidiaries (the "Corporation"). The financial
statements have been prepared in conformity with generally accepted accounting
principles and reporting practices. In the opinion of management, all
adjustments (none of which were other than normal recurring adjustments)
necessary for fair presentation of the financial position and the results of
operations and cash flows for the interim periods have been made. The results
of operations for the three- and nine-month periods ended September 30, 1993 are
not necessarily indicative of the results to be expected for the entire fiscal
year. Prior year financial statements are reclassified to conform with any
changes in current period financial statement presentation.
Certain information in footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
has been condensed or omitted pursuant to rules and regulations of the
Securities and Exchange Commission, although the Corporation believes the
disclosures are adequate to make the information not misleading. These
financial statements should be read in conjunction with the consolidated
financial statements and notes thereto included in the Corporation's 1992 Annual
Report.
2. EdgeMark Financial Corporation, a Delaware corporation, is a multi-bank
holding company, which operates Merchandise National Bank, Chicago, Illinois;
Edgewood Bank, Countryside and Woodridge, Illinois; EdgeMark Bank Lombard,
Lombard,Illinois; First National Bank of Lockport, Lockport, Illinois and
EdgeMark Bank Rosemont, Rosemont, Illinois.
3. Net income per share amounts are computed by dividing net income, reduced
by Preferred Stock dividends and discount accretion, by the weighted average
number of common and common equivalent shares for each period presented. Common
equivalent shares include dilutive Common Stock options.
4. Recorded income taxes represent effective rates of 20.05% and 22.14% for
the nine-month periods ended September 30, 1993 and 1992, respectively. The
effective rates differ from the 34.00% statutory Federal income tax rates
primarily due to investments in certain tax-exempt investments.
5. Payment of dividends by the Corporation is subject to various limitations
by the Federal Reserve Board. The ability of the Corporation to declare or pay
common dividends is also restricted by terms of the Corporation's $13,500,000
short-term note agreement (see Note 6), in the event of default thereunder, and
the Series A Preferred Stock dividend preference. At September 30, 1993, all of
the Corporation's retained earnings were restricted.
6. On March 31, 1993, the $10,000,000 and the $3,500,000 short-term senior
notes matured. This debt was renewed as one note for $13,500,000 and under
substantially the same terms and conditions as the previous notes. The new
short-term senior note will mature on March 30, 1994.
C-9
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
The following discussion and analysis provides information about the financial
condition of the Corporation at September 30, 1993 and the results of its
operations for the three- and nine-month periods ended September 30, 1993 and
1992.
This discussion and analysis should be read in conjunction with the unaudited
interim consolidated financial statements. Ratios for the interim periods are
stated on an annualized basis and are not necessarily indicative of ratios which
may be expected for the entire year.
Analysis of the Statements of Earnings
The following summarizes the components of net income as a percentage of average
assets for the three- and nine-month periods ended September 30, 1993 and 1992:
<TABLE>
<CAPTION>
THREE THREE NINE NINE
MONTHS MONTHS MONTHS MONTHS
1993 1992 1993 1992
<S> <C> <C> <C> <C>
Net Interest Income 1.08% 1.06% 3.24% 3.18%
Provision for Loan Losses (0.05) (0.15) (0.31) (0.51)
Other Income 0.40 0.39 1.21 1.02
Other Expense (1.17) (1.12) (3.42) (3.30)
Income Before Income Taxes 0.26 0.18 0.72 0.39
Applicable Income Taxes 0.06 0.04 0.14 0.08
Net Income 0.20% 0.14% 0.58% 0.31%
</TABLE>
Net Interest Income
Net interest income is defined as the difference between interest income plus
fees on loans and interest expense on deposits and borrowed funds. Net
interest income is the primary source of earnings and is dependent on the
levels of and rates on average earning assets and interest-bearing liabilities.
Net interest income during the third quarter of 1993 was $5,729,940 compared to
$5,584,080 for the comparable period in 1992, for an increase of $145,860, or
2.61%. For the nine months ended September 30, 1993, net interest income
increased $651,409 or 3.95% compared with the same period for 1992. The
increase was primarily attributable to a .11% increase in net interest margin in
conjunction with an approximate $7,164,000 increase in net earning assets.
The net yield on average earning assets was 4.93% for the third quarter of 1993
and 4.86% for the comparable period in 1992. For the nine-month periods ended
September 30, net yields were 4.94% and 4.83% for 1993 and 1992, respectively.
C-10
Yield improvement is a result of shifting certain assets along with newly
acquired assets investments with higher returns, coupled by the repricing of
customer interest-bearing deposit accounts.
Provision and Allowance for Loan Losses
The provision for loan losses during the third quarter in 1993 amounted to
$240,000, compared to a provision of $767,750 in 1992. Net charge-offs for the
third quarter in 1993 totaled $141,702, compared to net charge-offs of $197,827
for the third quarter in 1992.
Year-to-date, the provision for loan losses was $1,628,000 compared to
$2,666,583 for 1992. For the first nine months of 1993, net charge-offs totaled
$350,257 compared to $2,381,025 for the same period in 1992.
The decrease in both the quarterly and year-to-date provision for loan losses
and net charge-offs is attributable to the overall improvement in the quality
and mix of the loan portfolio.
At September 30, 1993, the ratio of non-performing loans to net loans was 1.44%
compared to 1.25% at December 31, 1992. There were no significant occurrences
in the third quarter that attributed to the slight increase of .19% in the ratio
of non-performing loans to net loans.
The allowance for loan losses at September 30, 1993 was $6,300,980, or 1.85%,
of net loans, compared with $5,022,616 or 1.48% of net loans at December 31,
1992. Management believes that the allowance at September 30, 1993 is adequate
in relation to the present and potential credit risks in the loan portfolio.
Other Income
Other income, which includes service charges on deposit accounts, trading
account gains, net security gains and other fees and charges, increased $114,215
or 5.63%, in the third quarter of 1993 in comparison to other income in the
third quarter of 1992. For the nine-month period ending September 30, 1993,
other income increased $1,117,797 or 21.19% in comparison to the same period in
1992.
Overall, the nine-month increase was primarily due to $586,166 in trading
account gains, which were partially offset by a $491,215 decrease in security
gains. Little trading account activity was experienced during the first nine
months of 1992 is due to the trading account was not established until the third
quarter of 1992. For the nine-month period ending September 30, 1993,
C-11
investment securities had gross realized gains of $455 and gross realized
losses of $2,482. Additionally, the increase in other income is attributable to
the $995,080 increase in mortgage brokerage fees. Mortgage loan closings
expanded substantially during the third quarter of 1993 due to the low interest
rates being offered. For the first nine months of 1993, mortgage closings
totaled $161,928,750 compared to $114,571,000 for the comparable period in 1992.
Other Expense
Other expense includes the major categories of salaries and employee benefits,
net occupancy expense, furniture and equipment expense, and other expenses
associated with day-to-day operations. Other expense during the third quarter
of 1993 increased $322,413, or 5.49%, compared to the same period in 1992. For
the nine months ended September 30, 1993, other expense increased $963,757, or
5.62%, over the same period for 1992.
In comparing the nine-month period ending September 30, 1993 with the same
period in 1992, the overall increase is primarily due to the combination of
increases in salary and employee benefits, marketing and other expenses. Salary
and employee benefits increased by approximately $803,000, or 10.30%, due mainly
from an approximate $565,000 increase in salaries associated with the mortgage
brokerage operations. The remaining slight increase of approximately $238,000
is attributable to annual merit raises offset by the cost savings being
experienced from the late 1992 and early 1993 restructuring program and
implementation of the consolidation of the subsidiary banks' backroom
operations. Marketing expense increased approximately $41,000, or 8.83%,
principally due to the mortgage brokerage campaign to penetrate and develop
business in new mortgage areas. Other expense increased approximately $350,000,
or 17.39%. Of this increase, approximately $67,000 was attributed to the
write-off of remaining leaseholds associated with the leveling of a branch
facility in order to construct a new one, approximately $46,000 in dealer
reserve write-downs and approximately $141,000 in increases in mortgage
brokerage operating costs.
Income Taxes
Recorded income taxes of $318,115 in the third quarter of 1993 and $208,961 in
the third quarter of 1992 represent effective tax rates of 22.20% and 21.60%,
respectively. Income tax expense of $764,017 for the first nine months of 1993
and $435,403 for the first nine months of 1992 represent effective tax rates of
20.05% and 22.14%, respectively.
The effective rates differ from the 34.00% statutory Federal income tax rates
primarily due to investments in certain tax-exempt investment securities. In
connection with the purchase of Merchandise
C-12
National Bank of Chicago ("Merchandise"), the Corporation has available for
Federal tax purposes investment tax credits. These tax credits are available to
offset future taxable income attributable to Merchandise. For financial
reporting purposes, any such benefit realized is treated as a reduction of the
unamortized balance of cost in excess of the fair value of net assets acquired
in the Merchandise acquisition. No such benefits were realized during the
second quarter or for the six-month periods ended September 30, 1993 and 1992.
In February, 1992, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards No. 109, "Accounting for Income
Taxes" ("SFAS No. 109"), which adopts the liability method of comprehensive
inter-period tax accounting and requires among other things, provision for
deferred income taxes at the statutory rates (including the effects of
giving consideration to alternative taxing systems) in effect for the period in
which the taxes will become payable rather than at the rate in effect for the
current period. Additionally, accumulated deferred taxes, recorded at
historical rates on the balance sheet, must be adjusted for the expected taxes
owed or refundable. "SFAS No. 109" is effective for fiscal years beginning
after December 15, 1992. The Corporation's management has reviewed "SFAS No.
109" and the proposed changes to determine the impact that the adoption will
have on the financial statement. The Corporation adopted the statement on
January 1, 1993. The cumulative effect of this accounting change had an initial
financial statement benefit of approximately $40,000.
The components of the net deferred tax assets at September 30, 1993 are as
follows:
<TABLE>
<CAPTION>
<S> <C>
Loan Losses $ (1,197,672)
Accretion of Discount on Investment Securities 29,055
Depreciation and Amortization on Premises and Equipment 118,078
Deferred Compensation (51,402)
Restructuring Charges 0
Alternative Minimum Tax ("AMT") (559,566)
Unrealized Trading Securities
Gains 87,242
Other, Net 31,791
Total Deferred Tax Assets $ (1,542,474)
Less: Valuation Allowance 486,948
Net Deferred Tax Assets at September 30, 1993 $ (1,055,526)
</TABLE>
Analysis of the Balance Sheet
Assets
Total assets at September 30, 1993 were approximately $533.8 million, an
decrease of approximately $17.7 million, or 3.44%, compared to year-end 1992.
C-13
Cash and cash equivalents increased $10.8 million, net loans increased $1.6
million and investment securities shown an increase of $4.5 from December 31,
1992 to September 30, 1993. At September 30, 1993, investment securities had
gross unrealized securities gains and losses of $4,390,505 and $49,703,
respectively. Additionally, trading securities remained stable, showing a
modest decrease of approximately $0.3 million and other assets increased by
approximately $1.2 million when comparing balances at December 31, 1992 with
September 30, 1993.
Liabilities
Total deposits increased by $14.7 million or 3.21% from December 31, 1992 to
September 30, 1993. Overall, non-interest bearing deposits showed a decrease of
$4.0 million, primarily in the commercial accounts. Additionally, time deposits
decreased $5.2 million due to customers shifting funds into alternative
investment vehicles, both within and outside the Corporation. Both of these
decreases were more than offset by an increase in Savings, NOW and money market
deposits of $24.0 million. The experienced rapid growth is apparently
attributable to depositors parking funds in liquid interest bearing instruments
due to the uncertainty of interest rate direction. The majority of this deposit
growth was concentrated in golden savings and money market deposits. The net
deposit liability increase was coupled by a $1.6 million increase in federal
funds sold and securities sold under agreement to repurchase. This increase was
caused primarily by one customer shifting from a money market account to
repurchase agreements. Continued strong earnings performance in 1993 increased
total Stockholders' Equity by $2.4 million.
Interest Rate Sensitivity
Interest rate sensitivity is related to liquidity and addresses the individual
bank's ability to reprice earning assets to correspond with changes in interest
rates paid on deposits or other debt. The Corporation manages the repricing of
earning assets relative to the pricing of supporting liabilities in the light of
the interest rate outlook, within an acceptable level of risk, to enhance
earning opportunities. The Corporation's six-month cumulative ratio of rate
sensitive assets to rate sensitive liabilities at September 30, 1993 was
approximately 107.04%. This particular ratio indicates that in a rising
interest rate environment, there will be a slight positive impact on current
earnings. The following table illustrates the Corporation's cumulative interest
rate sensitivity structure:
(in thousands)
C-14
<TABLE>
<CAPTION>
Up to Up to Up to Up to Up to 5 Years
September 30, 1993 1 Month 3 Months 6 Months 1 Year 5 Years and Over
<S> <C> <C> <C> <C> <C> <C>
Assets:
Loans $ 130,167 $ 142,669 $ 159,087 $188,203 $ 284,970 $ 330,751
Investments 3,194 6,665 7,970 9,578 100,326 106,242
Other Assets 21,870 21,870 21,870 21,870 21,870 75,880
Total Rate Sensitive:
Assets $ 155,231 $ 171,204 $ 188,927 $219,651 $ 407,166 $ 512,873
Liabilities and Equity:
Deposits $ 110,844 $ 142,901 $ 174,455 $196,455 $ 219,270 $ 400,011
Other Liabilities 1,500 1,500 1,500 1,500 1,500 4,940
Equity 37,350
Total Rate Sensitive
Liabilities $ 112,344 $ 144,401 $ 176,494 $197,955 $ 220,770 $ 442,301
Cumulative Gap $ 42,887 $ 26,803 $ 12,433 $ 21,696 $ 186,396 $ 70,572
Cumulative Ratio (%) 138.17% 118.56% 107.04% 110.96% 184.43% 115.96%
<FN>
The Corporation does not consider savings accounts to be interest rate sensitive. Accordingly, all savings account balances are
included in 5 year and over deposit category. All other rate sensitive assets and liabilities are based upon their contractual
terms.
</TABLE>
Liquidity
Liquidity management involves the ability to meet the funds flow requirements of
customers. The Corporation's liquidity is maintained by the maturity structure
of loans, investment securities, and cash and deposits with banks, as well as in
Federal funds. The Corporation does not rely on brokered deposits as sources of
liquidity. The Corporation's statement of cash flows presents data about the
cash and cash equivalents provided and used by the Corporation in its operating,
investing and financing activities. The liquidity needs relating to the
C-15
Corporation's mortgage brokerage activities are not expected to exceed $8-10
million at any point in time. Mortgage loans originated will usually
approximate mortgage loans sold as it is the Corporation's intent to sell these
loans in the secondary market. This mismatch of mortgage loans originated and
mortgage loans sold is temporarily funded by one of the subsidiary banks.
At September 30, 1993, the Corporation's liquidity, as measured by Federal funds
sold net of Federal funds purchased and repurchase agreements, cash and due from
banks, and investment securities with maturities of one year or less, totaled
approximately $62,845,000, or 13.25% of total deposits.
Capital
At September 30, 1993, Stockholders' Equity totaled $40,424,416, up $2,562,094
from December 31, 1992. The growth in equity reflects net income of $3,046,988
and the payment of 144,894 and $510,000 in Common and Preferred Stock dividends.
The risk-based capital guidelines consider both balance sheet and off-balance
sheet credit risk, while the capital leverage ratio is an ongoing tool to
monitor capital in relation to total average assets.
The Corporation's Tier 1 and total risk-based capital ratios, as well as its
capital leverage ratio, exceed the current regulatory minimums. The Corporation
intends to continue to build its capital resources in the coming year through
internal capital generation and balance sheet management.
The following table represents various measures of capital at:
<TABLE>
<CAPTION>
September 30, 1993 December 31, 1992
AMOUNT RATIO AMOUNT RATIO
<S> <C> <C> <C> <C>
Risk-Based Capital:
Tier 1 Capital $ 24,100,424 7.01% $ 21,110,066 6.24%
Total Risk-Based Capital 28,343,442 8.25 26,132,682 7.72
Leverage 24,100,424 4.69 21,110,066 4.09
</TABLE>
Tier 1 Capital - Stockholders' Equity minus the cost in excess of the fair
value of net assets acquired divided by risk-adjusted assets as defined in the
guidelines.
Total Risk-Based Capital - Tier 1 capital plus the allowance for loan losses as
defined in the guidelines
Leverage - Tier 1 under the current guidelines to quarterly average assets.
Presently, the Corporation does not have any material commitments for capital
expenditures.
C-16
APPENDIX D
OPINION OF DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
February 23, 1994
Board of Directors
EdgeMark Financial Corporation
Merchandise Mart Plaza, Suite 2400
P.O. Box 3436
Chicago, Illinois 60654
Members of the Board:
You have requested our opinion as to the fairness, from a financial point
of view, to the holders of the outstanding common stock, par value $1.00 per
share (the "EdgeMark Common Stock"), of EdgeMark Financial Corporation
("EdgeMark") of the Conversion Ratio (as defined in the Plan of Merger)
pursuant to the Agreement and Plan of Merger dated as of November 1, 1993,
among EdgeMark, Old Kent Financial Corporation ("Old Kent") and Old Kent-
Illinois, Inc., a wholly owned subsidiary of Old Kent (the "Plan of Merger").
At the time the Merger (as defined in the Plan of Merger) becomes effective
(the "Effective Time"), each share of EdgeMark Common Stock which is
outstanding immediately prior to the Effective Time will be converted into
shares of common stock, par value $1.00 per share, of Old Kent ("Old Kent
Common Stock"). The number of shares to be received by each EdgeMark
shareholder will be based on a Conversion Ratio, subject to payment in cash for
fractional shares and adjustment under certain circumstances. The Conversion
Ratio will be equal to $42.79 divided by the "Old Kent Stock Price Per Share."
The "Old Kent Stock Price Per Share" will be the weighted average sale price
for all transactions reported for Old Kent Common Stock on the Bloomberg
Financial Markets System, or an equivalent system, for each of the last ten
trading days preceding the date of closing for which transactions in Old Kent
Common Stock are reported on that system (the "Pricing Period"). Notwithstanding
such weighted average, the Old Kent Stock Price Per Share will not be more than
$35 per share nor less than $31 per share.
The Plan of Merger provides that EdgeMark shall not be obligated to
consummate the Merger at any time when both of the following conditions exist:
(i) the Old Kent Stock Price Per Share is less than $28, subject to certain
adjustments; and (ii) the percentage determined by dividing the Old Kent Stock
Price Per Share by $33 is more than 15 percentage points less than the
percentage determined by dividing the sum of the closing prices of a group of
comparison stocks (as set forth in the Plan of Merger) on the last day of the
Pricing Period by the sum of the closing prices of these comparison stocks on
October 29, 1993, subject to certain adjustments.
Consummation of the Merger is subject to, among other things, approvals of
the Board of Governors of the Federal Reserve System, the Illinois Commissioner
of Banks and Trust Companies and the Commissioner of Financial Institutions
Bureau, Michigan Department of Commerce; approval by the holders of a majority
of the shares of EdgeMark Common Stock; and receipt of opinions that the Merger
will qualify as a tax-free reorganization.
D-1
Board of Directors
EdgeMark Financial Corporation
February 23, 1994
Page 2
Donaldson, Lufkin & Jenrette Securities Corporation, as part of its
investment banking business, is regularly engaged, with respect to bank holding
companies and other corporations, in the valuation of businesses and their
securities in connection with mergers and acquisitions, negotiated
underwritings, competitive biddings, secondary distributions of listed and
unlisted securities, private placements, and valuations for corporate and other
purposes. We were retained by EdgeMark to act as its exclusive financial
advisor with respect to a review of EdgeMark's strategic alternatives and the
possible sale, merger, consolidation, or other business combination, in one or
a series of transactions, involving all or a substantial amount of the
business, securities or assets of EdgeMark. We have received and will receive
compensation from EdgeMark in connection with our services, a significant
portion of which is contingent upon the consummation of the Merger.
At your direction, we solicited the interest of third parties regarding a
possible business combination with EdgeMark. The Plan of Merger is the result
of this solicitation.
In the ordinary course of our business, we may actively trade the debt and
equity securities of companies, including EdgeMark and Old Kent, for our own
account and for the accounts of customers and may hold a long or short position
in such securities at any time.
For purposes of this opinion and in connection with our review of the
proposed transaction, we have, among other things:
1. Participated in discussions and negotiations among representatives of
EdgeMark and Old Kent and their respective legal advisors that resulted in the
Plan of Merger;
2. Reviewed the Plan of Merger and the prospectus and proxy statement to
be sent to the holders of EdgeMark Common Stock in connection with the proposed
transaction;
3. Reviewed certain publicly available financial statements, both audited and
unaudited, for EdgeMark and Old Kent, including those included in
the Annual Report on Form 10-K for the year ended December 31, 1992, the
Quarterly Reports on Form 10-Q for the periods ended March 31, 1993, June 30,
1993, and September 30, 1993, and the most recent regular annual proxy
statement available as of the date hereof for EdgeMark and Old Kent;
4. Reviewed certain financial statements and other financial and operating data
concerning EdgeMark and Old Kent prepared by their respective
managements;
D-2
Board of Directors
EdgeMark Financial Corporation
February 23, 1994
Page 3
5. Reviewed certain financial projections of EdgeMark and Old Kent, both
on a stand-alone and on a combined basis, prepared by their respective
managements;
6. Discussed certain aspects of the past and current business operations,
results of regulatory examinations, financial condition and future
prospects of EdgeMark and Old Kent with certain members of the management of
EdgeMark and Old Kent;
7. Reviewed reported market prices and historical trading activity of
EdgeMark Common Stock and Old Kent Common Stock;
8. Reviewed certain aspects of the financial performance of EdgeMark and
Old Kent and compared such financial performance of EdgeMark and Old Kent
together with the stock market data relating to EdgeMark and Old Kent with
similar data available for certain other financial institutions and certain of
their publicly traded securities;
9. Reviewed certain of the financial terms, to the extent publicly available,
of certain recent business combinations involving other financial
institutions; and
10. Conducted such other studies, analyses, and examinations as we deemed
appropriate.
We have relied upon and assumed without independent verification the accuracy
and completeness of all of the financial and other information provided to us by
EdgeMark, Old Kent and their respective representatives and of the publicly
available information reviewed by us. We have also relied upon the managements
of both EdgeMark and Old Kent as to the reasonableness and achievability of the
financial and operating forecasts provided to us (and the assumptions and bases
therefor). In that regard, we have assumed that such forecasts, including
without limitation projected cost savings and operating synergies resulting from
the Merger, reflect the best currently available estimates and judgments of such
respective managements and that such projections and forecasts will be realized
in the amounts and in the time periods currently estimated by the managements of
both EdgeMark and Old Kent. We did not independently verify and have relied on
and assumed that the aggregate allowances for loan losses set forth in the
balance sheets of each of EdgeMark and Old Kent at September 30, 1993, were
adequate to cover such losses and complied fully with applicable law, regulatory
policy and sound banking practice as of the date of such financial statements.
We did not independently verify the carrying values of other real estate owned
and loans classified as in-substance foreclosures of each of EdgeMark and Old
Kent in their respective September 30, 1993, balance sheets, and we have assumed
that such carrying values complied fully with applicable law, regulatory policy
D-3
Board of Directors
EdgeMark Financial Corporation
February 23, 1994
Page 4
and sound banking practice as of such date. We were not retained to and did not
conduct a physical inspection of any of the properties or facilities of EdgeMark
or Old Kent, nor did we make any independent evaluation or appraisal of the
assets, liabilities or prospects of EdgeMark or Old Kent, were not furnished
with any such evaluation or appraisal, and did not review any individual credit
files. We have assumed that the Merger is, and will be, in compliance with all
laws and regulations that are applicable to EdgeMark and Old Kent. We have
assumed for purposes of our opinion that the Merger will be recorded as a
purchase under generally accepted accounting principles.
Our opinion is based solely upon the information available to us and the
economic, market, and other circumstances as they exist as of the date hereof.
Events occurring after the date hereof could materially affect the assumptions
used in preparing this opinion. We have not undertaken to reaffirm or revise
this opinion or otherwise comment upon any events occurring after the date
hereof.
In rendering our opinion, we have been advised by Old Kent and EdgeMark and
have assumed that there are no other factors that would impede any necessary
regulatory or governmental approval for the Merger and we have further assumed
that in the course of obtaining the necessary regulatory and governmental
approvals for the proposed Merger, no restriction will be imposed on Old Kent or
the surviving corporation in the Merger that would have a material adverse
effect on Old Kent or the contemplated benefits of the Merger. We have also
assumed that there would not occur any change in the applicable law or
regulation that would cause a material adverse change in the prospects or
operations of Old Kent or the surviving corporation after the Merger.
We are not expressing any opinion herein as to the prices at which shares
of Old Kent Common Stock issued in the Merger may trade if and when they are
issued or at any future time, nor does our opinion constitute a recommendation
to any holder of EdgeMark Common Stock as to how such holder should vote with
respect to the Plan of Merger at any meeting of holders of EdgeMark Common
Stock.
This letter is solely for the information of the Board of Directors of
EdgeMark and is not to be used, circulated, quoted or otherwise referred to for
any other purpose, nor is it to be filed with, included in or referred to in
whole or in part in any registration statement, proxy statement or any other
document, except in each case in accordance with our prior written consent
which shall not be unreasonably withheld; provided, however, that we hereby
D-4
Board of Directors
EdgeMark Financial Corporation
February 23, 1994
Page 5
consent to the inclusion and reference to this letter in any registration
statement, proxy statement, information statement or tender offer document to
be delivered to the holders of EdgeMark Common Stock in connection with the
Merger so long as this letter is quoted in full or attached as an exhibit to
such document and this letter has not been withdrawn prior to the date of such
document.
Subject to the foregoing and based on our experience as investment
bankers, our activities as described above, and other factors we have deemed
relevant, we are of the opinion as of the date hereof that the Conversion Ratio
is fair, from a financial point of view, to the holders of EdgeMark Common
Stock.
Very truly yours,
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By /s/ David D. Olson
David D. Olson
Managing Director
D-5
APPENDIX E
EDGEMARK FINANCIAL CORPORATION SUMMARY OF
RECENT FINANCIAL INFORMATION (UNAUDITED)
EdgeMark Financial Corporation
Summary of Recent Financial Information (Unaudited)
The following unaudited tables present summary results of operations
of EdgeMark for the three and twelve month periods ended December 31, 1993, and
for the comparable periods in the preceding year, and selected balance sheet
data as of December 31, 1993, and December 31, 1992. This information is
preliminary unaudited data, and is subject to revision pending completion of
EdgeMark's annual audit. In the opinion of EdgeMark the unaudited figures for
such periods and as of such dates contain all adjustments (consisting only of
normal recurring accruals) necessary to present fairly the financial condition
and results of operations of EdgeMark as of such dates and for such periods.
This information should be read in conjunction with the financial information
included elsewhere in or incorporated by reference into this Prospectus
and Proxy Statement.
<TABLE>
<CAPTION>
Quarter Ended Year Ended
(In Thousands) December 31 December 31
1993 1992 1993 1992
<S> <C> <C> <C> <C>
Net Interest Income $5,813 $5,742 $22,958 $22,235
Provision for Loan Losses 307 2,819 1,935 5,486
Net Income (Loss) 1,207 (4,256) 4,254 (2,724)
Per Common Share:
Primary Net Income .69 (3.06) 2.37 (2.41)
Cash Dividends Paid .15 .15 .25 .25
</TABLE>
<TABLE>
<CAPTION>
At December 31
(In Thousands) 1993 1992
<S> <C> <C>
Assets $534,411 $516,071
Deposits 468,787 459,661
Net Loans 349,649 333,313
Short-Term Debt 12,000 13,500
Shareholders' Equity 41,280 37,862
Book Value per Common Share 22.82 20.70
</TABLE>
EdgeMark Financial Corporation reported net income of $4.26 million
for 1993, compared to the $2.72 million loss in 1992. Net income per share was
$2.37 for 1993, compared to the $2.41 per share loss in 1992.
For 1993, EdgeMark's return on average assets was 0.80%, up from
(0.52%) for 1992. Return on average equity was 10.73% for the year ending
December 31, 1993, an improvement over (6.40%) for the year 1992. Over the
course of 1993, EdgeMark maintained a strong balance sheet, ending the year with
an equity-to-asset ratio of 7.72%. The balance sheet was also enhanced by the
E-1
allowance for loan losses which, at December 31, 1993, represented 1.81% of
total loans and 181.75% of nonperforming loans.
The primary factors contributing to the performance of 1993 include
increased net interest income, improved assets quality, increased other income
and the gain realized from the sale of mortgage company assets. Net interest
income increased $.72 million in 1993, representing a 3.25% improvement over
that of 1992. This increase was mainly due to growth in earning assets, which,
in 1993, averaged $465.88 million, 1.69% more than in 1992. Improvements in
asset quality benefitted EdgeMark through a lower provision for loan losses. In
1993, EdgeMark recorded a loan loss provision of $1.94 million, 64.73% less than
that of 1992, which totalled $5.49 million. Net loan charge-offs for 1993, were
$0.48 million, or 0.14% of average net loans. This compares to $4.91 million of
net loan charge-offs, or 1.45% of average net loans, for 1992. In addition to
the 1993 reductions in provision for loan losses and net loans charged-off,
total nonperforming assets declined by 16.30% to $3.54 million at December 31,
1993, from $4.23 million at December 31, 1992.
Other income increased 40.00% to $9.69 million in 1993. This growth
reflects a continuing focus on fee-based sources of income. The most notable
success in 1993 was an increase of 28.82% in other income from mortgage banking
activities which totalled $4.31 million in 1993, compared to $3.35 million in
1992. The continued low interest rates fueled demand for mortgage refinancing
in 1993, which attributed to the increase in mortgage brokerage fees.
Additionally, other income increased due to the sale of substantially
all of EdgeMark Mortgage Corporation's assets. On November 30, 1993, these
assets were sold to a third party, resulting in an approximate $1.5 million
gain.
Other expense decreased in the fourth quarter of 1993 when compared
with the same period in 1992, due to the fact that EdgeMark incurred $2.3
million in restructuring charges during the fourth quarter of 1992. During the
fourth quarter of 1993, there was a $500,000 write-down on a piece of property
being held for future expansion. Also, in conjunction with the Merger, EdgeMark
incurred related expenses of approximately $470,000 during this quarter. These
expenses partially offset the gain on the sale of EdgeMark Mortgage
Corporation's assets.
E-2
APPENDIX F
OLD KENT FINANCIAL CORPORATION SUMMARY
OF RECENT FINANCIAL INFORMATION
Old Kent Financial Corporation
Summary of Recent Financial Information
The following tables present summary results of operations of Old Kent
for the three and twelve month periods ended December 31, 1993, and for the
comparable periods in the preceding year, and selected balance sheet data as of
December 31, 1993, and December 31, 1992. This information is unaudited data,
and is subject to revision pending completion of Old Kent's annual report. In
the opinion of Old Kent, the figures for such periods and as of such dates
contain all adjustments (consisting only of normal recurring accruals) necessary
to present fairly the financial condition and results of operations of Old Kent
as of such dates and for such periods. This information should be read in con-
junction with the historical financial information included elsewhere in or
incorporated by reference into this Prospectus and Proxy Statement.
<TABLE>
<CAPTION>
Quarter Ended Year Ended
December 31 December 31
1993 1992 1993 1992
<S> <C> <C> <C> <C>
Net Interest Income $103,407 $100,714 $406,740 $385,608
Provision for Loan Losses 7,568 6,581 33,997 57,712
Net income 30,484 29,371 127,902 111,091
Per common share:
Primary net income .75 .72 3.14 2.75
Fully diluted net income .75 .72 3.14 2.71
Cash dividends paid .29 .26 1.07 .90 1/3
</TABLE>
<TABLE>
<CAPTION>
As of December 31
1993 1992
<S> <C> <C>
Assets $9,855,704 $8,698,574
Deposits 7,971,152 7,253,540
Loans 5,491,584 4,907,629
Long-term debt 1,215 16,217
Shareholders' equity 812,767 726,277
Book value per common share 20.05 17.96
</TABLE>
Old Kent achieved record earnings and dividends in 1993. Net income of
$127.9 million for 1993 represents a 15.1% increase over $111.1 million earned
in 1992. Fully diluted net income per share was $3.14 for 1993, an increase of
15.9% over $2.71 per share reported for 1992.
Old Kent increased its quarterly dividend payment in December 1993
from $.26 per share to $.29 per share. On an annual basis, the new dividend
rate represents $1.16 per share compared to the prior rate of $1.04, an 11.5%
increase.
F-1
For 1993, Old Kent's return on average assets was 1.38%, up from 1.27%
for 1992. Return on average equity was 16.65% for the year ending December 31,
1993, an improvement over 16.25% for the year 1992. Over the course of 1993,
Old Kent maintained a strong balance sheet, ending the year with an equity-to-
asset ratio of 8.25%. The balance sheet was also enhanced by the allowance for
credit losses which, at December 31, 1993, represented 2.56% of total loans and
206% of nonperforming assets.
The primary factors contributing to Old Kent's record performance in
1993 include increased net interest income, improved asset quality, and improved
non-interest revenues. Net interest income increased to $407 million in 1993,
representing a 5.5% improvement over that of 1992. This increase was mainly due
to growth in earning assets which, in 1993, averaged $8.6 billion, 5.2% more
than in 1992. Improvements in asset quality benefited Old Kent through a
lower provision for credit losses. In 1993, Old Kent recorded a credit loss
provision of $34.0 million, 41.1% less than that of 1992. Net charge-offs
for 1993, were $16.2 million, or .31% of average total loans. This compares to
$23.9 million of net charge-offs, or .48% of average total loans, for the
year 1992. In addition to the 1993 reductions in provision for credit losses
and net loans charged-off, total non-performing assets declined by 21.0% to
$68.2 million at December 31, 1993, from $86.3 million a year earlier.
Non-interest revenues increased 14.6% to $146.8 million in 1993. This
growth reflects a continuing focus on fee-based sources of income. The most
notable success in 1993, was an increase of 44% in revenues from Old Kent's
mortgage banking activities which totaled $30 million in 1993, compared to
$20.9 million in 1992. These revenues consisted of gains on the sale of
residential mortgages along with the revenues from the servicing of such loans
for third party investors. Continued low interest rates fueled demand for
mortgage refinancings in 1993. This enabled Old Kent to originate and acquire
mortgages of $2.4 billion and to sell mortgages of $2.0 billion into the
secondary market with gains of $20.8 million 42% more than that of 1992. These
activities also contributed to growth in Old Kent's third party servicing
portfolio, a major source of recurring fee-based revenues. At December 31,
1993, Old Kent serviced nearly $3.2 billion of mortgages for third party
investors. This compares to $1.7 billion at December 31, 1992. Mortgage
servicing revenue totaled $9.4 million in 1993, representing a 50% increase over
that of 1992.
Mortgage banking was not the sole reason for the increased non-
interest revenues in 1993. Old Kent experienced improved profitability through
more traditional banking products and services as well. Service charges
increased by $3.5 million, or 13.0%, in 1993, and trust income grew by 4.8%.
F-2
APPENDIX G
DELAWARE GENERAL CORPORATION LAW
SECTION 262, APPRAISAL RIGHTS
DELAWARE GENERAL CORPORATION LAW
SECTION 262, APPRAISAL RIGHTS
(a) Any stockholder of a corporation of this State who holds shares of
stock on the date of the making of a demand pursuant to subsection (d) of this
section with respect to such shares, who continuously holds such shares through
the effective date of the merger or consolidation, who has otherwise complied
with subsection (d) of this section and who has neither voted in favor of the
merger or consolidation nor consented thereto in writing pursuant to Section
228 of this title shall be entitled to an appraisal by the Court of Chancery
of the fair value of his shares of stock under the circumstances described in
subsections (b) and (c) of this section. As used in this section, the word
"stockholder" means a holder of record of stock in a stock corporation and also
a member of record of a nonstock corporation; the words "stock" and "share"
mean and include what is ordinarily meant by those words and also membership or
membership interest of a member of a nonstock corporation.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to Section 251, 252, 254, 257, 258, 263 or 264 of this title:
(1) Provided, however, that no appraisal rights under this section shall be
available for the shares of any class or series of stock which, at the
record date fixed to determine the stockholders entitled to receive notice of
and to vote at the meeting of stockholders to act upon the agreement of merger
or consolidation, were either (i) listed on a national securities exchange or
(ii) held of record by more than 2,000 stockholders; and further provided that
no appraisal rights shall be available for any shares of stock of the
constituent corporation surviving a merger if the merger did not require for
its approval the vote of the stockholders of the surviving corporation as
provided in subsection (f) of Section 251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights under
this section shall be available for the shares of any class or
series of stock of a constituent corporation if the holders thereof are
required by the terms of an agreement of merger or consolidation pursuant to
Sections 251, 252, 254, 257, 258, 263 and 264 of this title to accept for such
stock anything except:
a. Shares of stock of the corporation surviving or resulting from such merger
or consolidation;
b. Shares of stock of any other corporation which at the effective date of the
merger or consolidation will be either listed on a national securities exchange
or designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. or held of record
by more than 2,000 stockholders;
c. Cash in lieu of fractional shares of the corporations described in the
foregoing subparagraphs a. and b. of this paragraph; or
G-1
d. Any combination of the shares of stock and cash in lieu of fractional
shares described in the foregoing subparagraphs a., b. and c. of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation party to
a merger effected under Section 253 of this title is not owned by the parent
corporation immediately prior to the merger, appraisal rights shall be available
for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation
that appraisal rights under this section shall be available for the shares of
any class or series of its stock as a result of an amendment to its certificate
of incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets
of the corporation. If the certificate of incorporation contains such a provi-
sion, the procedures of this section, including those set forth in subsections
(d) and (e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights are
provided under this section is to be submitted for approval at a
meeting of stockholders, the corporation, not less than 20 days prior to the
meeting, shall notify each of its stockholders who was such on the record date
for such meeting with respect to shares for which appraisal rights are
available pursuant to subsections (b) or (c) hereof that appraisal rights are
available for any or all of the shares of the constituent corporations, and
shall include in such notice a copy of this section. Each stockholder electing
to demand the appraisal of his shares shall deliver to the corporation, before
the taking of the vote on the merger or consolidation, a written demand for
appraisal of his shares. Such demand will be sufficient if it reasonably
informs the corporation of the identity of the stockholder and that the
stockholder intends thereby to demand the appraisal of his shares. A proxy or
vote against the merger or consolidation shall not constitute such a demand. A
stockholder electing to take such action must do so by a separate written
demand as herein provided. Within 10 days after the effective date of such
merger or consolidation, the surviving or resulting corporation shall notify
each stockholder of each constituent corporation who has complied with this
subsection and has not voted in favor of or consented to the merger or
consolidation of the date that the merger or consolidation has become
effective; or
(2) If the merger or consolidation was approved pursuant to Section 228
or Section 253 of this title, the surviving or resulting corporation, either
before the effective date of the merger or consolidation within 10 days
thereafter, shall notify each of the stockholders entitled to appraisal rights
of the effective date of the merger or consolidation and that appraisal rights
are available for any or all of the shares of the constituent corporation, and
shall include in such notice a copy of this section. The notice shall be sent
by certified or registered mail, return receipt requested, addressed to the
stockholder at his address as it appears on the records of the corporation.
G-2
Any stockholder entitled to appraisal rights may, within 20 days after the date
of mailing of the notice, demand in writing from the surviving or resulting
corporation the appraisal of his shares. Such demand will be sufficient if it
reasonably informs the corporation of the identity of the stockholder and that
the stockholder intends to demand the appraisal of his shares.
(e) Within 120 days after the effective date of the merger or consolidation,
the surviving or resulting corporation or any stockholder who has complied with
subsections (a) and (d) hereof and who is otherwise entitled to appraisal
rights, may file a petition in the Court of Chancery demanding a determination
of the value of the stock of all such stockholders. Notwithstanding the
foregoing, at any time within 60 days after the effective date of the merger or
consolidation, any stockholder shall have the right to withdraw his demand for
appraisal and to accept the terms offered upon the merger or consolidation.
Within 120 days after the effective date of the merger or consolidation, any
stockholder who has complied with the requirements of subsections (a) and (d)
hereof, upon written request, shall be entitled to receive from the corporation
surviving the merger or resulting from the consolidation a statement setting
forth the aggregate number of shares not voted in favor of the merger or
consolidation and with respect to which demands for appraisal have been received
and the aggregate number of holders of such shares. Such written statement
shall be mailed to the stockholder within 10 days after his written request for
such a statement is received by the surviving or resulting corporation or within
10 days after expiration of the period for delivery of demands for appraisal
under subsection (d) hereof, whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of
a copy thereof shall be made upon the surviving or resulting corporation, which
shall within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Registry in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the
addresses therein stated. Such notice shall also be given by 1 or more
publications at least 1 week before the day of the hearing, in a newspaper of
general circulation published in the City of Wilmington, Delaware, or such
publication as the Court deems advisable. The forms of the notices by mail and
by publication shall be approved by the Court, and the costs thereof shall be
borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled
to appraisal rights. The Court may require the stockholders who have demanded
an appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
G-3
fails to comply with such direction, the Court may dismiss the proceedings as
to such stockholder.
(h) After determining the stockholders entitled to an appraisal, the
Court shall appraise the shares, determining their fair value exclusive of any
element of value arising from the accomplishment or expectation of the merger
or consolidation, together with a fair rate of interest, if any, to be paid
upon the amount determined to be the fair value. In determining such fair
value, the Court shall take into account all relevant factors. In determining
the fair rate of interest, the Court may consider all relevant factors,
including the rate of interest which the surviving or resulting corporation
would have had to pay to borrow money during the pendency of the proceeding.
Upon application by the surviving or resulting corporation or by any
stockholder entitled to participate in the appraisal proceeding, the Court may,
in its discretion, permit discovery or other pretrial proceedings and may
proceed to trial upon the appraisal prior to the final determination of the
stockholder entitled to an appraisal. Any stockholder whose name appears on
the list filed by the surviving or resulting corporation pursuant to
subsection (f) of this section and who has submitted his certificate of stock
to the Register of Chancery, if such is required, may participate fully in all
proceedings until it is finally determined that he is not entitled to appraisal
rights under this section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting
corporation to the stockholders entitled thereto. Interest may be simple or
compound, as the Court may direct. Payment shall be so made to each such
stockholder, in the case of holders of uncertificated stock forthwith, and the
case of holders of shares represented by certificates upon the surrender to the
corporation of the certificates representing such stock. The Court's decree
may be enforced as other decrees in the Court of Chancery may be enforced,
whether such surviving or resulting corporation be a corporation of this State
or of any state.
(j) The costs of the proceeding may be determined by the Court and
taxed upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the ex-
penses incurred by any stockholder in connection with the appraisal proceeding,
including, without limitation, reasonable attorney's fees and the fees and
expenses of experts, to be charged pro rata against the value of all the shares
entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation,
no stockholder who has demanded his appraisal rights as provided in subsection
(d) of this section shall be entitled to vote such stock for any purpose or to
receive payment of dividends or other distributions on the stock (except
dividends or other distributions payable to stockholders of record at a
date which is prior to the effective date of the merger or consolidation);
provided, however, that if no petition for an appraisal shall be filed within
the time provided in subsection (e) of this section, or if such stockholder
shall deliver to the surviving or resulting corporation a written withdrawal of
his demand for an appraisal and an acceptance of the merger or consolidation,
G-4
either within 60 days after the effective date of the merger or consolidation
as provided in subsection (e) of this section or thereafter with the written
approval of the corporation, then the right of such stockholder to an appraisal
shall cease. Notwithstanding the foregoing, no appraisal proceeding in the
Court of Chancery shall be dismissed as to any stockholder without the approval
of the Court, and such approval may be conditioned upon such terms as the Court
deems just.
(l) The shares of the surviving or resulting corporation to which the
shares of such objecting stockholders would have been converted had they
assented to the merger or consolidation shall have the status of authorized and
unissued shares of the surviving or resulting corporation.
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<TABLE>
No person is authorized to give any information or to make any representation
not contained in this Prospectus and Proxy Statement in connection with the
offering and solicitation made hereby. If given or made, such information or
representation should not be relied upon as having been authorized. This
Prospectus and Proxy Statement does not constitute an offer to sell, or a
solicitation of an offer to purchase, the securities offered by this Prospectus
and Proxy Statement, or the solicitation of a proxy, in any jurisdiction to or
from any person to whom it is unlawful to make such offer, or solicitation of an
offer, or proxy solicitation in such jurisdiction. Neither the delivery of this
Prospectus and Proxy Statement nor any distribution of the securities of this
Prospectus and Proxy Statement offers shall, under any circumstances, create any
implication that there has been no change in the information contained herein or
in the affairs of Old Kent or EdgeMark since the date hereof.
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
Page [EdgeMark Logo]
INTRODUCTION AND SUMMARY.......................................... 1
Introduction...................................................... 1 PROSPECTUS AND
Old Kent Financial Corporation.................................... 2 PROXY STATEMENT
OKFC Subsidiary................................................... 2
EdgeMark.......................................................... 3 Special Meeting of Stockholders of
Recent Developments............................................... 3 EdgeMark Financial Corporation
Summary of Certain Aspects of the Merger.......................... 3
Market Value of Shares............................................ 7 In Connection with an Offering of up to
Selected Financial Data........................................... 9 2,181,000 Shares
Comparative Per Share Data....................................... 11
OLD KENT
GENERAL MEETING INFORMATION...................................... 14 FINANCIAL CORPORATION
Purpose......................................................... 14 COMMON STOCK, $1 PAR VALUE
Voting by Proxy................................................. 14
Proxy Solicitation.............................................. 14 [Old Kent Logo]
Voting Rights and Record Date .................................. 14
Expenses........................................................ 15
THE MERGER....................................................... 15
Background of the Merger........................................ 15
Merger Recommendation and Reasons for Transaction............... 17
Opinion of Financial Adviser.................................... 18
Conversion of EdgeMark Shares................................... 25
Stock Price Condition........................................... 27
Distribution of Old Kent Common Stock........................... 27
Effective Date of the Merger.................................... 29
Business of EdgeMark Pending the Merger......................... 29
EdgeMark Stock Options.......................................... 30
Management After the Merger..................................... 30
Conditions to the Merger and Abandonment........................ 30
Termination Fee................................................. 32
Description of Old Kent Capital Stock........................... 33
Provisions Affecting Control.................................... 34
Comparison of Rights of Old Kent Shareholders and EdgeMark
Stockholders................................................. 35
Agreements of Affiliates........................................ 38
Federal Income Tax Consequences ................................ 38
APPRAISAL RIGHTS................................................. 40
VOTING AND MANAGEMENT INFORMATION................................ 42
Voting Securities and Principal Stockholders of EdgeMark........ 42
Interest of Certain Persons..................................... 44
GENERAL INFORMATION.............................................. 45
Incorporation by Reference...................................... 45
Independent Public Accountants.................................. 46
Stockholder Proposals........................................... 47
Legal Opinions.................................................. 47
Sources of Information.......................................... 47
Appendix A -- Agreement and Plan of Merger
Appendix B -- EdgeMark Financial Corporation Annual Report to
Shareholders for Year Ended December 31, 1992
Appendix C -- EdgeMark Financial Corporation Unaudited Financial
Statements and Management's Discussion and Analysis
Appendix D -- Opinion of Donaldson, Lufkin & Jenrette Securities
Corporation
Appendix E -- EdgeMark Financial Corporation Summary of Recent
Financial Information (Unaudited)
Appendix F -- Old Kent Financial Corporation Summary of Recent
Financial Information
Appendix G -- Delaware General Corporation Law Section 262,
Appraisal Rights
</TABLE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Under Sections 561-569 of the Michigan Business Corporation Act (the
"Michigan Act"), officers and directors of a Michigan corporation may be
entitled to indemnification by the corporation against judgments, expenses,
fines, and amounts paid by the officer or director in settlement of claims
brought against them by third persons or by or in the right of the corporation
if those officers and directors acted in good faith and in a manner reasonably
believed to be in, or not opposed to, the best interests of the corporation or
its shareholders.
Old Kent is obligated under its Articles of Incorporation and Bylaws to
indemnify a present or former director or executive officer of Old Kent, and
may indemnify any other person, to the fullest extent now or hereafter
permitted by law in connection with any actual or threatened civil, criminal,
administrative, or investigative action, suit, or proceeding arising out of
their past or future service to Old Kent or a subsidiary, or to another
organization at the request of Old Kent or a subsidiary.
The Michigan Act provides for indemnification of directors and officers
acting in good faith and in a manner they reasonably believe to be in or not
opposed to the best interest of Old Kent or its shareholders (and, if a
criminal proceeding, who have no reasonable cause to believe their conduct to
be unlawful) against (i) expenses (including attorney's fees), judgments,
penalties and fines, and amounts paid in settlement actually and reasonably
incurred in connection with any threatened, pending, or completed action, suit,
or proceeding (other than an action by, or in the right of, Old Kent) arising
out of a position with Old Kent (or with some other entity at Old Kent's
request) and (ii) expenses (including attorney's fees) and amounts paid in
settlement actually and reasonably incurred in connection with threatened,
pending, or completed actions or suits by or in the right of Old Kent, unless
the director or officer is found liable to Old Kent and an appropriate court
does not determine that he or she is nevertheless fairly and reasonably
entitled to indemnity for reasonable expenses incurred. The Michigan Act
requires indemnification for expenses to the extent that a director or officer
is successful in defending against any such action, suit, or proceeding, and
otherwise requires in general that the indemnification provided for in (i) and
(ii) above be made only on a determination by a majority vote of a quorum of
the Board of Directors who were not parties to or threatened to be made parties
to the action, suit, or proceeding, by a majority vote of a committee of not
less than 2 disinterested directors, by independent legal counsel, by all
independent directors not parties to or threatened to be made parties to the
action, suit, or proceeding, or by the shareholders, that the applicable
standards of conduct were met. In certain circumstances, the Michigan Act
further permits advances to cover such expenses before a final determination
that indemnification is impermissible or required, upon receipt of an under-
taking, which need not be secured, by or on behalf of the directors or officers
II-1
to repay such amounts unless it shall ultimately be determined that he or she
is entitled to indemnification.
Indemnification under the Michigan Act is not exclusive of other rights to
indemnification to which a person may be entitled under the Articles of
Incorporation, Bylaws or a contractual agreement.
The Michigan Act permits Old Kent to purchase insurance on behalf of its
directors and officers against liabilities arising out of their positions with
Old Kent, whether or not such liabilities would be within the foregoing
indemnification provisions. Pursuant to this authority, Old Kent maintains
such insurance on behalf of its directors and officers.
Item 21. Exhibits and Financial Statement Schedules.
(a) Exhibits. The following exhibits are filed as part of this Registration
Statement.
<TABLE>
<CAPTION>
Number Exhibit
<S> <C>
2 Agreement and Plan of Merger. Attached as Appendix A to the
Prospectus and Proxy Statement.
3(a) Restated Articles of Incorporation. Previously filed as an
exhibit to the registrant's Form 10-Q Quarterly Report for
quarterly period ended March 31, 1993. Here incorporated by
reference.
(b) Bylaws. Previously filed as an exhibit to the registrant's
Form 10-K Annual Report for its fiscal year ended December 31,
1990. Here incorporated by reference.
4(a) Certificate of Designation, Preferences, and Rights of
Series B Preferred Stock. Previously filed as an exhibit to
the registrant's Form 8-A Registration Statement filed
December 20, 1988. Here incorporated by reference.
(b) Long-term Debt. The registrant has outstanding several
classes of long-term debt instruments which at the time of
this report do not exceed 10% of the registrant's total
consolidated assets. The registrant agrees to furnish copies
of the agreements defining the rights of holders of
such long-term indebtedness to the Securities and Exchange
Commission upon request.
5 Opinion of Warner, Norcross & Judd as to the Legality of the
Securities Being Registered.
8 Opinion of Warner, Norcross & Judd as to Certain Tax Matters.
II-2
13 EdgeMark 1992 Annual Report to Stockholders. Attached as
Appendix B to the Prospectus and Proxy Statement.
23(a) Consent of Warner, Norcross & Judd.
(b) Consent of Arthur Andersen & Co.
(c) Consent of KPMG Peat Marwick.
(d) Consent of Deloitte & Touche.
(e) Consent of Donaldson, Lufkin & Jenrette Securities Corporation.
Contained in the Opinion of Donaldson, Lufkin & Jenrette
Securities Corporation attached as Appendix D to the Prospectus
and Proxy Statement.
24 Powers of Attorney.
99(a) President's Letter.
(b) Form of Proxy.
</TABLE>
(b) Financial Statement Schedules. Schedules have been omitted because they
are not required or because the information is set forth in the financial
statements and the notes thereto.
(c) Opinions of Financial Advisers. The opinion of Donaldson, Lufkin &
Jenrette Securities Corporation appears as Appendix D to the Prospectus and
Proxy Statement.
Item 22. Undertakings.
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933 (the "Act"), each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
II-3
The undersigned registrant hereby undertakes as follows: that prior to
any public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other Items of the applicable form.
The undersigned registrant hereby undertakes that every prospectus (i)
that is filed pursuant to Paragraph (1) immediately preceding, or (ii) that
purports to meet the requirements of Section 10(a)(3) of the Act and is used in
connection with an offering of securities subject to Rule 415, will be filed as
a part of an amendment to the registration statement and will not be used until
such amendment is effective, and that, for purposes of determining any
liability under the Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the Prospectus and Proxy
Statement pursuant to Item 4, 10(b), 11 or 13 of this form, within one business
day of receipt of such request, and to send the incorporated documents by first
class mail or other equally prompt means. This includes information contained
in documents filed subsequent to the effective date of the registration
statement through the date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a post-
effective amendment all information concerning a transaction, and the company
being acquired involved therein, that was not the subject of and included in
the registration statement when it became effective.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Grand Rapids, State of
Michigan, on February 16, 1994.
OLD KENT FINANCIAL CORPORATION
(Registrant)
By /s/ Richard W. Wroten
Richard W. Wroten
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
February 16, 1994 /s/ John M. Bissell*
John M. Bissell
Director
February 16, 1994 /s/ John D. Boyles*
John D. Boyles
Director
February 16, 1994 /s/ John C. Canepa*
John C. Canepa
President, Chief Executive Officer and
Director (Principal Executive Officer)
February 16, 1994 /s/ Earl D. Holton*
Earl D. Holton
Director
February 16, 1994 /s/ Michael J. Jandernoa*
Michael J. Jandernoa
Director
February 16, 1994 /s/ John P. Keller*
John P. Keller
Director
II-5
February 16, 1994 /s/ Jerry K. Myers*
Jerry K. Myers
Director
February 16, 1994 /s/ William U. Parfet*
William U. Parfet
Director
February 16, 1994 /s/ Percy A. Pierre*
Percy A. Pierre
Director
February 16, 1994 /s/ Robert L. Sadler*
Robert L. Sadler
Vice Chairman of the Board and Director
February 16, 1994 /s/ Peter F. Secchia*
Peter F. Secchia
Director
February 16, 1994 /s/ B. P. Sherwood, III*
B. P. Sherwood, III
Vice Chairman of the Board, Treasurer,
and Director
February 16, 1994 /s/ Martha L. Thornton*
Martha L. Thornton
Director
February 16, 1994 /s/ David J. Wagner*
David J. Wagner
Executive Vice President and Director
February 16, 1994 /s/ Richard W. Wroten
Richard W. Wroten
Executive Vice President and Chief
Financial Officer (Principal
Financial and Accounting Officer)
February 16, 1994 By /s/ Richard W. Wroten
Richard W. Wroten
Attorney-in-Fact
II-6
<TABLE>EXHIBIT INDEX
<CAPTION>
Number Exhibit Page
<S> <C> <C>
2 Agreement and Plan of Merger. *
3(a) Restated Articles of Incorporation. *
(b) Bylaws. *
4(a) Certificate of Designation, Preferences, and Rights *
of Series B Preferred Stock.
(b) Long-term Debt. The registrant has outstanding
several classes of long-term debt instruments
which at the time of this report do not exceed
10% of the registrant's total consolidated assets.
The registrant agrees to furnish copies of the
agreements defining the rights of holders of such
long-term indebtedness to the Securities and
Exchange Commission upon request.
5 Opinion of Warner, Norcross & Judd as to the Legality *
of the Securities Being Registered.
8 Opinion of Warner, Norcross & Judd as to Certain Tax *
Matters.
13 EdgeMark 1992 Annual Report to Stockholders. * **
24(a) Consent of Warner, Norcross & Judd. *
(b) Consent of Arthur Andersen & Co. *
(c) Consent of KPMG Peat Marwick. *
(d) Consent of Donaldson, Lufkin & Jenrette Securities ***
Corporation.
25 Powers of Attorney. *
99(a) President's Letter. *
(b) Form of Proxy. *
*Previously filed.
**This report is not deemed "filed" except for those portions of the report
which are expressly incorporated by reference in the Prospectus.
***Contained in their opinion, filed as Appendix D to the Prospectus and Proxy
Statement.
</TABLE>
