SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: February 23, 1996
OLD KENT FINANCIAL CORPORATION
(Exact name of registrant as
specified in charter)
MICHIGAN 0-12216 38-1986608
(State of Incorporation) (Commission (IRS Employer
File Number) Identification no.)
ONE VANDENBERG CENTER
GRAND RAPIDS, MICHIGAN 49503
(Address of principal executive offices) (Zip Code)
Registrant's telephone number,
including area code: (616) 771-5000
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
This Form 8-K is filed solely for the purpose of filing exhibits
that will be incorporated by reference in the registrant's Form 10-K
Annual Report for its fiscal year ended December 31, 1995, and other future
filings.
(c) Exhibits:
NUMBER EXHIBIT
3(b) BYLAWS.
4(b) CERTIFICATE OF DESIGNATION, PREFERENCES, AND RIGHTS OF
SERIES B PREFERRED STOCK.
10(f) AMENDMENT TO RESTRICTED STOCK PLAN OF 1987.
10(o) EXECUTIVE SEVERANCE AGREEMENT FOR MR. WARRINGTON.
10(p) RESTRICTED STOCK AGREEMENT FOR MR. WARRINGTON.
10(q) RESTRICTED STOCK AGREEMENT FOR MR. WARRINGTON.
10(r) POOLING AND SERVICING AGREEMENT.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
OLD KENT FINANCIAL CORPORATION
By: /S/ RICHARD W. WROTEN
Richard W. Wroten
Executive Vice President
and Chief Financial Officer
Dated: February 23, 1996
EXHIBIT INDEX
EXHIBIT NO. DOCUMENT
3(b) Bylaws.
4(b) Certificate of Designation, Preferences, and Rights of
Series B Preferred Stock.
10(f) Amendment to Restricted Stock Plan of 1987.
10(o) Executive Severance Agreement for Mr. Warrington.
10(p) Restricted Stock Agreement for Mr. Warrington.
10(q) Restricted Stock Agreement for Mr. Warrington.
10(r) Pooling and Servicing Agreement.
EXHIBIT 3(b) Restated April 19, 1993
as amended through
April 17, 1995
BYLAWS
OF
OLD KENT FINANCIAL CORPORATION
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal office shall be in the
City of Grand Rapids, County of Kent, State of Michigan.
SECTION 2. OTHER OFFICES. The Corporation may also have offices at
such other places both within and without the State of Michigan as the
board of directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 1. TIMES AND PLACES OF MEETINGS. All meetings of the
shareholders shall be held at such times and places, within or without the
State of Michigan, as may be fixed from time to time by the board of
directors. If no designation of the place of a meeting is made, such
meeting shall be held at the principal office of Old Kent Bank and Trust
Company in Grand Rapids, Michigan.
SECTION 2. ANNUAL MEETINGS. Annual meetings of the shareholders
shall be held each year at such time on such business day in the month of
April as may be designated by the board of directors, or if no such
designation is made, at 10 a.m. on the third Monday in April, or if that
day is a legal holiday, then on the next succeeding business day at such
place and hour as shall be fixed by the board of directors.
SECTION 3. SPECIAL MEETINGS. Special meetings of the shareholders
may be called by resolution of a majority of the board of directors or by
the Chairman of the Board or Chief Executive Officer of the Corporation,
and shall be held on a date fixed by the board of directors or the Chairman
of the Board or Chief Executive Officer.
SECTION 4. NOTICE OF MEETINGS. Written notice of each meeting of
shareholders, stating the time, place and purposes thereof, shall be given
to each shareholder entitled to vote at the meeting not less than ten (10)
nor more than sixty (60) days before the date fixed for the meeting.
Notice of a meeting need not be given to any shareholder who signs a waiver
of notice before or after the meeting. Attendance of a shareholder at a
meeting shall constitute both (a) a waiver of notice or defective notice
except when the shareholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to holding the meeting or
transacting any business because the meeting has not been lawfully called
or convened, and (b) a waiver of objection to consideration of a particular
matter at the meeting that is not within the purpose or purposes described
in the meeting notice, except when the shareholder objects to considering
the matter when it is presented.
SECTION 5. SHAREHOLDER LIST. The officer or agent who has charge of
the stock ledger of the Corporation shall prepare and make a complete list
of the shareholders entitled to vote at each meeting, arranged by class or
series of shares in alphabetical order, showing the address of and the
number of shares registered in the name of each shareholder. The list
shall be produced and kept at the time and place of the meeting and may be
inspected during the whole time of the meeting by any shareholder who is
present at the meeting.
SECTION 6. QUORUM. Unless a greater or lesser quorum is provided in
the Articles of Incorporation or by law, shares entitled to cast a majority
of the votes at a meeting constitute a quorum at the meeting. Except when
the holders of a class or series of shares are entitled to vote separately
on an item of business, shares of all classes and series entitled to vote
shall be combined as a single class and series for the purpose of
determining a quorum. When the holders of a class or series of shares are
entitled to vote separately on an item of business, shares of that class or
series entitled to cast a majority of the votes of that class or series at
a meeting constitute a quorum of that class or series at the meeting,
unless a greater or lesser quorum is provided in the Articles of
Incorporation or by law. If there is no quorum, the officer of the
Corporation presiding as chairman of the meeting shall have the power to
adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum is present, when any business
may be transacted which might have been transacted at the meeting as first
convened had there been a quorum. However, if the adjournment is for more
than thirty (30) days, or if after the adjournment the board fixes a new
record date for the adjourned meeting, notice of the time, place and
purposes of such meeting shall be given to each shareholder of record on
the new record date. Once a quorum is determined to be present, the
shareholders present in person or by proxy at such meeting may continue to
do business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum. If a meeting is adjourned solely
for the purpose of receiving the results of voting by shareholders, such
meeting need not be reconvened. If not reconvened, such meeting shall
stand adjourned pending submission of the results of voting to the
Secretary of the Corporation, whereupon such meeting shall stand adjourned
until the next regular or special meeting of shareholders.
SECTION 7. VOTE REQUIRED. When a quorum is present at a meeting, any
action to be taken by a vote of the shareholders, other than the election
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of directors, shall be authorized by a majority of the votes cast by the
holders of shares entitled to vote on the action, unless a greater vote is
required by the Articles of Incorporation or express provision of statute.
Except as otherwise provided by the Articles of Incorporation, directors
shall be elected by a plurality of the votes cast at an election.
SECTION 8. VOTING RIGHTS. Except as otherwise provided by the
Articles of Incorporation or the resolution or resolutions of the board of
directors creating any class of stock, each shareholder shall at every
meeting of the shareholders be entitled to one vote in person or by proxy
for each share of the capital stock having voting power held by such
shareholder. Each proxy to vote shall be in writing and signed by the
shareholder or his or her duly authorized representative, and no proxy
shall be voted after three years from its date, unless the proxy provides
for a longer period.
SECTION 9. CONDUCT OF MEETINGS. Meetings of shareholders generally
shall follow accepted rules of parliamentary procedure, subject to the
following:
(a) The chairman of the meeting shall have absolute
authority over matters of procedure, and there shall be no appeal
from the ruling of the chairman. If, in his or her absolute
discretion, the chairman deems it advisable to dispense with the
rules of parliamentary procedure as to any meeting of
shareholders or part thereof, he or she shall so state and shall
clearly state the rules under which the meeting or appropriate
part thereof shall be conducted.
(b) If disorder should arise which, in the absolute
discretion of the chairman, prevents the continuation of the
legitimate business of the meeting, the chairman may quit the
chair and announce the adjournment of the meeting, and upon his
or her so doing, the meeting is immediately adjourned without the
necessity of any vote or further action of the shareholders.
(c) The chairman may require any person who is not a bona
fide shareholder of record on the record date, or a validly
appointed proxy of such a shareholder, to leave the meeting.
(d) The chairman may introduce nominations, resolutions or
motions submitted by the board of directors for consideration by
the shareholders without a motion or second. Except as the
chairman shall direct, a resolution or motion not submitted by
the board of directors shall be considered for a vote only if
proposed by a shareholder of record on the record date or a
validly appointed proxy of such a shareholder, and seconded by
such a shareholder or proxy other than the individual who
proposed the resolution or motion.
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(e) Except as the chairman shall direct, no matter may be
presented to the meeting which has not been submitted in writing
to the Secretary for inclusion in the agenda at least 10 days
before the date of the meeting.
(f) When all shareholders present at a meeting in person or
by proxy have been offered an opportunity to vote on any matter
properly before a meeting, the chairman may at his or her
discretion declare the polls to be closed, and no further votes
may be cast or changed after such declaration. If no such
declaration is made by the chairman, the polls shall remain open
and shareholders may cast additional votes or change votes until
the inspectors of election have delivered their final report to
the chairman.
(g) When the chairman has declared the polls to be closed
on all matters then before a meeting, the chairman may declare
the meeting to be adjourned pending determination of the results
by the inspectors of election. In such event, the meeting shall
be considered adjourned for all purposes, and the business of the
meeting shall be finally concluded upon delivery of the final
report of the inspectors of election to the chairman at or after
the meeting.
(h) When the chairman determines that no further matters
may properly come before a meeting, he or she may declare the
meeting to be adjourned, without motion, second, or vote of the
shareholders.
(i) When the chairman has declared a meeting to be
adjourned, unless the chairman has declared the meeting to be
adjourned until a later date, no further business may properly be
considered at the meeting even though shareholders or holders of
proxies representing a quorum may remain at the site of the
meeting.
SECTION 10. INSPECTORS OF ELECTION. The board of directors or, if
they shall not have so acted, the chairman may appoint, at or prior to any
meeting of shareholders, one or more persons (who may be directors and/or
employees of the Corporation) to serve as inspectors of election. The
inspectors so appointed shall determine the number of shares outstanding
and the voting power of each, the shares represented at the meeting, the
existence of a quorum, the validity and effect of proxies, and shall
receive votes or ballots, hear and determine challenges and questions
arising in connection with the right to vote, count and tabulate votes or
ballots, determine the result, and do such acts as are proper to conduct
the election or vote with fairness to all shareholders.
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SECTION 11. VOTING. When any vote is taken by written ballot at any
meeting of shareholders, an unrevoked proxy submitted in accordance with
its terms shall be accepted in lieu of, and shall be deemed to constitute,
a written ballot marked as specified in such proxy.
ARTICLE III
RECORD DATE
SECTION 1. FIXING OF RECORD DATE BY BOARD. For the purpose of
determining the shareholders entitled to notice of or to vote at any
meeting of shareholders, or any adjournment thereof, or to express consent
to or dissent from any corporate action in writing without a meeting, or
for the purpose of determining shareholders entitled to receive payment of
any dividend or the distribution or allotment of any rights or evidences of
interests arising out of any change, conversion or exchange of capital
stock, or for the purpose of any other action, the board of directors may
fix, in advance, a date as the record date for any such determination of
shareholders. Such date shall not be more than sixty (60) days nor less
than ten (10) days before the date of any such meeting, nor more than sixty
(60) days prior to the effectuation of any other action proposed to be
taken. Only shareholders of record on a record date so fixed shall be
entitled to notice of, and to vote at, such meeting or to receive payment
of any dividend or the distribution or allotment of any rights or evidences
of interests arising out of any change, conversion or exchange of capital
stock.
SECTION 2. PROVISION FOR RECORD DATE IN THE ABSENCE OF BOARD ACTION.
If a record date is not fixed by the board of directors: (a) the record
date for determination of shareholders entitled to notice of or to vote at
a meeting of shareholders shall be the close of business on the day next
preceding the day on which notice is given, or, if no notice is given, the
day next preceding the day on which the meeting is held; and (b) the record
date for determining shareholders entitled to express consent to corporate
action in writing, without a meeting, when no prior action by the board of
directors is necessary, shall be the day on which the first written consent
is expressed; and (c) the record date for determining shareholders for any
other purpose shall be the close of business on the day on which the
resolution of the board relating thereto is adopted.
SECTION 3. ADJOURNMENTS. When a determination of shareholders of
record entitled to notice of or to vote at a meeting of shareholders has
been made as provided in this Article, the determination applies to any
adjournment of the meeting, unless the board fixes a new record date for
the adjourned meeting.
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ARTICLE IV
DIRECTORS
SECTION 1. NUMBER AND QUALIFICATION OF DIRECTORS. Each director
shall be at least twenty-one (21) years of age. A director need not be a
shareholder, a citizen of the United States, or a resident of the State of
Michigan. The number of directors shall be fixed by resolution of the
board of directors as provided in the Articles of Incorporation.
SECTION 2. VACANCIES. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors shall be
filled in the manner provided in the Articles of Incorporation.
SECTION 3. POWERS. The business and affairs of the Corporation shall
be managed by its board of directors which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by
statute or by the Articles of Incorporation or by these Bylaws directed or
required to be exercised or done by the shareholders.
SECTION 4. FEES AND EXPENSES. The directors may be paid their
expenses, if any, of attendance at each meeting of the board of directors
and may be paid a fixed sum for attendance at each meeting of the board of
directors or a stated salary as director. No such payment shall preclude
any director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee meetings.
SECTION 5. RESIGNATION AND REMOVAL. Any director may resign at any
time and such resignation shall take effect upon receipt of written notice
thereof by the Corporation, or at such subsequent time as set forth in the
notice of resignation. Directors may be removed only as provided by
statute or the Articles of Incorporation.
ARTICLE V
MEETINGS OF DIRECTORS
SECTION 1. PLACE OF MEETINGS. The board of directors of the
Corporation may hold meetings, both regular and special, either within or
without the State of Michigan.
SECTION 2. FIRST MEETING OF NEWLY ELECTED BOARD. The first meeting
of each newly elected board of directors shall be held immediately
following the annual meeting of shareholders, and no notice of such meeting
shall be necessary to the newly elected directors to legally constitute the
meeting, provided a quorum shall be present. In the event such meeting is
not held immediately following the annual meeting of shareholders, the
meeting may be held at such time and place as shall be specified in a
notice given as hereinafter provided for special meetings of the board of
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directors, or as shall be specified in a written waiver signed by all of
the directors.
SECTION 3. REGULAR MEETINGS. Regular meetings of the board of
directors may be held with or without notice at such time and at such place
as shall from time to time be determined by the board.
SECTION 4. SPECIAL MEETINGS. Special meetings of the board may be
called by the Chairman of the Board or the Chief Executive Officer on two
(2) days' notice to each director, either personally, by mail, by telegram
or by facsimile transmission; special meetings shall be called by the
Chairman of the Board or Chief Executive Officer in like manner and on
like notice on the written request of two (2) directors.
SECTION 5. PURPOSE NEED NOT BE STATED. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
board of directors need be specified in the notice of such meeting.
SECTION 6. QUORUM. At all meetings of the board of directors a
majority of the total number of directors shall constitute a quorum for the
transaction of business, and the acts of a majority of the directors
present at any meeting at which there is a quorum shall be the acts of the
board of directors, except as may be otherwise specifically provided by
statute or by the Articles of Incorporation. If a quorum is not present at
any meeting of the board of directors, the directors present thereat may
adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum is present.
SECTION 7. ACTION WITHOUT A MEETING. Unless otherwise restricted by
the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the board of directors or of any
committee thereof may be taken without a meeting if, before or after the
action, all members of the board or of such committee, as the case may be,
consent thereto in writing and such written consent is filed with the
minutes or proceedings of the board or committee.
SECTION 8. MEETING BY TELEPHONE OR SIMILAR EQUIPMENT. Members of the
board of directors or any committee designated by the board of directors
may participate in a meeting of such board, or committee, by means of
conference telephone or similar communications equipment by means through
which all persons participating in the meeting can communicate with each
other. Participation in a meeting pursuant to this Section shall
constitute presence in person at the meeting.
SECTION 9. WAIVER OF NOTICE. Attendance of a director at or
participation in a meeting of the board of directors or any committee
constitutes a waiver of notice of the meeting, except where a director
attends a meeting for the express purpose of objecting, at the beginning of
the meeting or upon his or her arrival, to the meeting or the transaction
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of any business because the meeting has not lawfully been called or
convened, and the person does not thereafter vote for or assent to any
action taken at the meeting. Notice of any meeting of the board or a
committee need not be given to any person entitled thereto who waives such
notice in writing, either before or after the meeting.
ARTICLE VI
COMMITTEES OF DIRECTORS
SECTION 1. COMMITTEES. The board of directors may from time to time
appoint committees, whose membership shall consist of such members of the
board of directors as it may deem advisable, to serve at the pleasure of
the board. The board of directors may also appoint directors to serve as
alternates for members of each committee in the absence or disability of
regular members. The board of directors may fill any vacancies in any
committee as they occur.
SECTION 2. EXECUTIVE COMMITTEE. The Executive Committee, if there is
one, shall have and may exercise the full powers and authority of the board
of directors in the management of the business affairs and property of the
Corporation during the intervals between meetings of the board of
directors. The Executive Committee shall also have the power and authority
to declare distributions and dividends and to authorize the issuance of
stock.
SECTION 3. AUDIT COMMITTEE.
(a) FUNCTION. The Audit Committee shall perform the
function of an audit committee for the Corporation and each of
its subsidiaries as that function may be defined for the purpose
of compliance with laws and regulations applicable to the
Corporation and each of its subsidiaries. The Audit Committee
shall have the following duties and responsibilities:
(i) causing a suitable examination of the financial
records and operations of the Corporation and each of its
subsidiaries to be made by the internal auditor of the
Corporation;
(ii) recommending to the board of directors the
employment of independent public accountants who fulfill the
requirements established by Section 36 of the Federal
Deposit Insurance Act, as amended, and any regulations
issued pursuant to such act by the Federal Deposit Insurance
Corporation or any successor of such corporation;
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(iii) reviewing with the independent public accountants
and management of the Corporation and its subsidiaries the
bases for reports required by Section 36 of the Federal
Deposit Insurance Act, as amended, and any regulations
issued pursuant to such act by the Federal Deposit Insurance
Corporation or any successor of such corporation;
(iv) reviewing examination reports of the Corporation
prepared by regulatory authorities and such other
information concerning examination reports of the
Corporation's subsidiaries as the committee deems advisable;
and
(v) reporting to the board of directors at least once
each calendar year concerning the results of examinations
made and such conclusions and recommendations as the Audit
Committee deems advisable.
(b) ELIGIBILITY OF MEMBERS. Directors who fulfill all of
the following conditions shall be eligible to serve on the Audit
Committee:
(i) members may not be current employees of the
Corporation or any of its subsidiaries; and
(ii) members must satisfy the requirements established
by Section 36 of the Federal Deposit Insurance Act, as
amended, and any regulations issued pursuant to such act by
the Federal Deposit Insurance Corporation or any successor
of such corporation.
(c) AUTHORIZED ACTIONS. The Audit Committee shall have the
power to take and effect such actions as it deems necessary or
advisable in the performance of its duties. The committee may
engage counsel and other consultants to assist the committee in
performing its duties. Such counsel and other consultants may
but need not be otherwise engaged by the Corporation unless
otherwise prohibited by applicable laws or regulations.
SECTION 4. PERSONNEL COMMITTEE.
(a) FUNCTION. The Personnel Committee shall perform the
function of a compensation committee as that function may be
defined for the purpose of compliance with laws and regulations
applicable to the Corporation. The Personnel Committee shall
have the following duties and responsibilities:
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(i) administering the option plans and benefit plans
of the Corporation which are approved by the board of
directors;
(ii) determining the compensation policy of the
Corporation, reviewing the personnel policies and programs
of the Corporation, and submitting recommendations to the
board of directors;
(iii) determining the compensation of the Chief
Executive Officer, reviewing individual salaries of other
executive officers, and submitting recommendations to the
board of directors; and
(iv) preparing an annual report that may be submitted
to the Corporation's shareholders concerning the
compensation policy of the Corporation and the committee's
compensation decisions during the previous fiscal year.
(b) ELIGIBILITY OF MEMBERS. Directors who fulfill all of
the following conditions shall be eligible to serve on the
Personnel Committee:
(i) members may not be current or former employees of
the Corporation or any of its subsidiaries;
(ii) members must be "disinterested persons" as such
term may be defined for purposes of Section 16 of the
Securities Exchange Act of 1934, as amended; and
(iii) members must not have an Interlocking
Relationship with any executive officer of the Corporation.
An Interlocking Relationship shall include a relationship where an
executive officer of the Corporation serves as a member of the board of
directors of another entity of which a director of the Corporation is an
executive officer, or any other relationship that would be required to be
disclosed pursuant to Item 402(j)(3) of Regulation S-K issued by the
Securities and Exchange Commission.
(c) AUTHORIZED ACTIONS. The Personnel Committee shall have
the power to take and effect the following actions:
(i) authorize the issuance of stock pursuant to the
option plans and benefit plans of the Corporation which are
approved by the board of directors;
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(ii) interpret the option plans and benefit plans of
the Corporation which it administers to the extent that such
power does not conflict with the terms of the applicable
plan document; and
(iii) engage counsel and other consultants as the
committee may deem necessary or advisable to assist the
committee in performing its duties, which counsel and other
consultants may but need not be otherwise engaged by the
Corporation.
SECTION 5. COMMITTEE ON DIRECTORS. The Committee on Directors, if
there is one, shall consider candidates for the board of directors, propose
to the board of directors candidates for directors for submission to the
shareholders at the annual meeting, and review the retirement policy for
directors and make recommendations to the board of directors concerning
this policy.
SECTION 6. OTHER COMMITTEES. The board of directors may designate
such other committees as it may deem appropriate, and such committees shall
exercise the authority delegated to them.
SECTION 7. MEETINGS. Each committee provided for above shall meet as
often as its business may require and may fix a day and time for regular
meetings, notice of which shall not be required. Whenever the day fixed
for a meeting shall fall on a holiday, the meeting shall be held on the
following business day or on such other day as the chairman of the
committee may determine. Special meetings of committees may be called by
any member, and notice thereof may be given to the members by telephone,
telegram, letter or facsimile transmission. A majority of the members of a
committee shall constitute a quorum for the transaction of the business of
the committee. A record of the proceedings of each committee shall be kept
and presented to the board of directors.
SECTION 8. SUBSTITUTES. In the absence or disqualification of a
member of a committee, the members thereof present at a meeting and not
disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another member of the board to act at the meeting in
place of such absent or disqualified member.
ARTICLE VII
OFFICERS AND TITLED POSITIONS
SECTION 1. APPOINTMENT OF OFFICERS. The board of directors at its
first meeting after the annual meeting of shareholders, or as soon as
practicable after the election of directors in each year, shall appoint
from its number a Chairman of the Board and a President. The board of
directors shall also appoint a Secretary, a Treasurer and a Chief
Financial Officer, all of whom shall be officers of the Corporation. The
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board of directors may also appoint and expressly designate such other
individuals as it may deem proper to be officers of the Corporation, with
such titles as the board of directors may deem appropriate. If the offices
of Chairman of the Board and President are held by a single person, that
officer shall be the Chief Executive Officer of the Corporation; if not,
the board of directors shall designate either the Chairman of the Board or
the President to be the Chief Executive Officer of the Corporation. The
dismissal of an officer, the appointment of an officer to fill the office
of one who has been dismissed or has ceased for any reason to be an
officer, the appointment of any additional officers, and the change of an
officer to a different or additional office, may be made by the board of
directors at any later meeting. Any two or more offices may be filled by
the same person.
SECTION 2. APPOINTMENTS TO TITLED POSITIONS. The board of directors
or the Chief Executive Officer may from time to time appoint individuals to
fill titled positions. Holders of titled positions who may from time to
time be appointed pursuant to this Section shall hold such titles as are
assigned by the board of directors or the Chief Executive Officer and shall
perform such duties and exercise such authority as may be assigned by the
board of directors or the Chief Executive Officer. Dismissal of the holder
of a titled position, appointment of a replacement for a holder of a titled
position, appointment of any additional titled position holders, and change
of a titled position holder to a different or additional position, may be
made by the board of directors or the Chief Executive Officer. Any two or
more titled positions may be filled by the same person. (Amended 4/17/95.)
SECTION 3. AUTHORITY OF OFFICERS. The Chief Executive Officer, the
President (if not also the Chief Executive Officer), the Secretary, the
Treasurer, the Chief Financial Officer and such other persons as the board
of directors shall have appointed and expressly designated as officers
shall be the only officers of the Corporation. Only the officers of the
Corporation shall have discretionary authority to determine the fundamental
policies of the Corporation. Holders of titled positions who have not been
expressly designated as officers of the Corporation in this Section or by
the board of directors shall not be officers of the Corporation regardless
of their titles.
SECTION 4. AUTHORITY OF TITLED POSITIONS. Holders of titled
positions who are not officers shall not have discretionary authority to
determine fundamental policies of the Corporation and shall not, by reason
of holding such titled positions, be entitled to have access to any files,
records or other information relating or pertaining to the Corporation, its
business and finances, or to attend or receive the minutes of any meetings
of the board of directors or any committee of the Corporation, except as
and to the extent expressly authorized and permitted by the board of
directors or the Chief Executive Officer.
SECTION 5. TERM OF SERVICE. Each officer and holder of a titled
position shall serve at the pleasure of the board. The board of directors
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may remove any officer or holder of a titled position from that office or
position for cause or without cause. Any officer or holder of a titled
position may resign his or her office or position at any time, such
resignation to take effect upon receipt of written notice thereof by the
Corporation unless otherwise specified in the resignation.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the shareholders and all meetings of the board
of directors.
SECTION 7. PRESIDENT. The President shall, subject to the direction
of the board of directors, see that all orders and resolutions of the board
are carried into effect, and shall perform all other duties necessary or
appropriate to his or her office, subject, however, to his or her right and
the right of the directors to delegate any specific powers to any other
officer or officers of the Corporation. In case of the absence or
inability to act of the Chairman of the Board, the President shall exercise
all of the duties and responsibilities of the Chairman until the board
shall otherwise direct.
SECTION 8. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer, in
addition to his or her duties as Chairman of the Board or President, as the
case may be, shall have final authority, subject to the control of the
board of directors, over the general policy and business of the Corporation
and shall have the general control and management of the business and
affairs of the Corporation. The Chief Executive Officer shall have the
power, subject to the control of the board of directors, to appoint,
suspend or discharge and to prescribe the duties and to fix the
compensation of such agents and employees of the Corporation, other than
the officers appointed by the board, as he or she may deem necessary.
SECTION 9. VICE-CHAIRMEN OF THE BOARD. Each Vice-Chairman of the
Board shall have such powers and perform such duties as may be assigned to
him or her from time to time by the board of directors or the Chief
Executive Officer. In case of the absence or inability to act of the
Chairman of the Board and the President, the duties of his or her office
shall, unless otherwise specified by these Bylaws, be performed by the
Vice-Chairmen of the Board in the order of their seniority or such other
priority as may be established by the board or by the Chief Executive
Officer, unless and until the board shall otherwise direct, and, when so
acting, the duly authorized Vice-Chairman of the Board shall have all the
powers of, and shall be subject to the restrictions upon, the Chairman of
the Board or the President.
SECTION 10. VICE PRESIDENTS. Each Executive Vice President, Senior
Vice President, Vice President, Assistant Vice President and such other
vice presidents as may be designated by the board of directors shall have
such powers and perform such duties as may be assigned to him or her from
time to time by the board of directors or the Chief Executive Officer. In
case of the absence or inability to act of the President, and in the
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absence or inability to act of the Vice-Chairmen of the Board, the duties
of the President shall, unless otherwise specified by these Bylaws, be
performed by the Executive Vice Presidents, the Senior Vice Presidents, the
Vice Presidents, the Assistant Vice Presidents and then such other vice
presidents as may be designated by the board in the order of their
seniority or such other priority as may be established by the board or by
the Chief Executive Officer, unless and until the board shall otherwise
direct, and, when so acting, the duly authorized Executive Vice President,
Senior Vice President, Vice President or Assistant Vice President shall
have all the powers of, and shall be subject to the restrictions upon, the
President. Executive Vice Presidents, Senior Vice Presidents, Vice
Presidents and Assistant Vice Presidents have the authority to sign or
execute contracts and other documents which shall be binding on the
Corporation and to fulfill the terms thereof, but such Executive Vice
Presidents, Senior Vice Presidents, Vice Presidents and Assistant Vice
Presidents shall not have the discretionary policy-making authority
conferred upon the officers by these Bylaws unless expressly designated as
an officer by the board of directors.
SECTION 11. SECRETARY. The Secretary shall attend all sessions of the
board of directors and all meetings of the shareholders and shall record
all votes and the minutes of all proceedings in a book to be kept for that
purpose. The Secretary shall perform like duties for committees when
required. He or she shall give, or cause to be given, notice of all
meetings of the shareholders and meetings of the board of directors. He or
she shall keep in safe custody the seal of the Corporation and shall see
that it is affixed to all documents the execution of which, on behalf of
the Corporation under its seal, is necessary or appropriate, and when so
affixed may attest the same. He or she shall perform such other duties as
may be prescribed by the board of directors or the Chief Executive Officer.
SECTION 12. TREASURER. The Treasurer shall have custody of the
corporate funds and securities, except as otherwise provided by the board,
shall cause to be kept full and accurate accounts of receipts and
disbursements in books belonging to the Corporation, and shall deposit all
moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the board of
directors. He or she shall disburse the funds of the Corporation as may be
ordered by the board or directors, taking proper vouchers for such
disbursements, and shall render to the directors, at the regular meetings
of the board or whenever they may require it, an account of all his or her
transactions as Treasurer and of the financial condition of the
Corporation.
SECTION 13. ABSENCE. In the case of the absence or inability to act
of any officer or holder of any titled position, or for any other reason
that the board may deem sufficient, the board of directors or the Chief
Executive Officer may delegate for the time being the powers or duties of
such officer or holder of any titled position, to any other director or
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officer. To the extent that the enumerated powers or duties do not involve
participation in major policy-making functions of the Corporation or the
exercise of discretionary authority to that end, said powers or duties may
be delegated for the time being to the holder of a titled position, but
shall be exercised under the supervision of an officer.
ARTICLE VIII
INDEMNIFICATION
SECTION 1. INDEMNIFICATION OTHER THAN IN ACTIONS BY OR IN THE RIGHT
OF THE CORPORATION. Any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation) by reason of the fact
that he or she is or was a director or executive officer of the Corporation
or a subsidiary, or, while serving as such a director or executive officer,
is or was serving at the request of the Corporation or a subsidiary as a
director, officer, partner, trustee, employee or agent of another foreign
or domestic Corporation, partnership, joint venture, trust or other
enterprise, whether for profit or not, shall be indemnified by the
Corporation against expenses (including attorneys' fees), judgments,
penalties, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding
if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Corporation
or its shareholders, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed
to be in or not opposed to the best interests of the Corporation or its
shareholders, or with respect to any criminal action or proceeding, that he
or she had reasonable cause to believe that his or her conduct was
unlawful. Persons who are not directors or executive officers of the
Corporation or a subsidiary may be similarly indemnified in respect of such
service to the extent authorized at any time by the board of directors,
except as otherwise provided by statute or the Articles of Incorporation.
SECTION 2. INDEMNIFICATION IN ACTIONS BY OR IN THE RIGHT OF THE
CORPORATION. Any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of
the fact that he or she is or was a director or executive officer of the
Corporation or a subsidiary, or, while serving as such a director or
executive officer, is or was serving at the request of the Corporation or a
subsidiary as a director, officer, partner, trustee, employee or agent of
another foreign or domestic Corporation, partnership, joint venture, trust
or other enterprise, whether for profit or not, shall be indemnified by the
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Corporation against expenses (including attorneys' fees) and amounts paid
in settlement actually and reasonably incurred by him or her in connection
with the action or suit if he or she acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of
the Corporation or its shareholders. Indemnification shall not be made for
any claim, issue or matter in which such person has been found liable to
the Corporation except to the extent authorized in Section 6 of this
Article. Persons who are not directors or executive officers of the
Corporation or a subsidiary may be similarly indemnified in respect of such
service to the extent authorized at any time by the board of directors,
except as otherwise provided by statute or the Articles of Incorporation.
SECTION 3. EXPENSES. To the extent that a director or executive
officer, or other person whose indemnification is authorized by the board
of directors, has been successful on the merits or otherwise, including the
dismissal of an action without prejudice, in the defense of any action,
suit or proceeding referred to in Section 1 or 2 of this Article, or in the
defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith and any action,
suit or proceeding brought to enforce the mandatory indemnification
provided in this Section.
SECTION 4. AUTHORIZATION OF INDEMNIFICATION. Any indemnification
under Section 1 or 2 of this Article (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification is proper in the circumstances because
the person has met the applicable standard of conduct set forth in this
Article and upon an evaluation of the reasonableness of expenses and
amounts paid in settlement. Such determination shall be made (a) by the
board of directors by a majority vote of a quorum consisting of directors
who are not parties or threatened to be made parties to such action, suit
or proceeding, or if such a quorum cannot be obtained, by a majority vote
of a committee duly designated by the board consisting solely of two or
more directors not at the time parties or threatened to be made parties to
such action, suit or proceeding; (b) by independent legal counsel (who may
be the regular counsel of the Corporation) in a written opinion, which
counsel shall be selected as provided in (a) above, provided that if a
committee cannot be designated as provided in (a) above, then the board
shall select such independent counsel; (c) by all Independent Directors (as
that term is defined in the Michigan Business Corporation Act) who are not
parties or threatened to be made parties to such action, suit or
proceeding; or (d) by the shareholders, but shares held by directors,
officers, employees or agents who are parties or threatened to be made
parties to such action, suit or proceeding may not be voted. In
designating a committee under (a) above, or in the selection of independent
legal counsel in the event a committee cannot be designated pursuant to
(b) above, all directors may participate. The Corporation may indemnify a
person for a portion of expenses (including reasonable attorneys' fees),
judgments, penalties, fines and amounts paid in settlement for which the
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person is entitled to indemnification under Section 1 or 2 of this Article,
even though the person is not entitled to indemnification for the total
amount of such expenses, judgments, penalties, fines and amounts paid in
settlement.
SECTION 5. ADVANCING OF EXPENSES. Expenses incurred by any person
who is or was serving as a director or executive officer of the Corporation
or a subsidiary in defending a civil or criminal action, suit or proceeding
described in Section 1 or 2 of this Article shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding if (a) the person furnishes the Corporation a written
affirmation of his or her good faith belief that he or she has met the
applicable standard of conduct set forth in Section 1 or 2 of this Article;
(b) the person furnishes the Corporation a written undertaking, executed
personally or on his or her behalf, to repay the advance if it is
ultimately determined that he or she did not meet the applicable standard
of conduct; and (c) a determination is made that the facts then known to
those making the determination would not preclude indemnification under the
Michigan Business Corporation Act. Persons who are or were not serving as
a director or executive officer of the Corporation or a subsidiary may
receive similar advances of expenses to the extent authorized at any time
by the board of directors, except as otherwise provided by statute or the
Articles of Incorporation. Determinations under this Section shall be made
in the manner specified in Section 4 of this Article. Notwithstanding the
foregoing, in no event shall any advance be made in instances where the
board or independent legal counsel reasonably determines that such person
deliberately breached his or her duty to the Corporation or its
shareholders.
SECTION 6. RIGHT TO INDEMNIFICATION UPON APPLICATION; PROCEDURE UPON
APPLICATION. A director, executive officer or other person who is a party
or threatened to be made a party to an action, suit or proceeding may apply
for indemnification to the court conducting the proceeding or to another
court of competent jurisdiction. On receipt of an application, the court
may order indemnification if it determines that the person is fairly and
reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not he or she met the applicable standard of
conduct set forth in Section 1 or 2 of this Article or was adjudged liable
as described in Section 2 of this Article, provided, however, that if he or
she was adjudged liable, his or her indemnification shall be limited to
reasonable expenses incurred.
SECTION 7. INDEMNIFICATION UNDER BYLAWS NOT EXCLUSIVE. The
indemnification or advancement of expenses provided by this Article shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the
Articles of Incorporation, any bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
-17-
officer, employee or agent, and shall inure to the benefit of the heirs,
executors and administrators of such a person. The total amount of
expenses advanced or indemnified from all sources shall not exceed the
amount of actual expenses incurred by the person seeking indemnification or
advancement of expenses. All rights to indemnification under this Article
shall be deemed to be provided by a contract between the Corporation and
the director, officer, employee or agent who serves in such capacity at any
time while these Bylaws and other relevant provisions of the general
corporation law and other applicable law, if any, are in effect. Any
repeal or modification thereof shall not affect any rights or obligations
then existing.
SECTION 8. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, partner, trustee, employee or
agent of another Corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as
such, whether or not the Corporation would have the power to indemnify him
or her against such liability under the provisions of this Article.
SECTION 9. MERGERS. For the purposes of this Article, references to
the "Corporation" include all constituent Corporations absorbed in a
consolidation or merger, as well as the resulting or surviving Corporation,
so that any person who is or was a director, officer, employee or agent of
such constituent Corporation, or is or was serving at the request of such
constituent Corporation as a director, officer, partner, trustee, employee
or agent of another foreign or domestic Corporation, partnership, joint
venture, trust or other enterprise, whether for profit or not, shall stand
in the same position under the provisions of this Article with respect to
the resulting or surviving Corporation if he or she had served the
resulting or surviving Corporation in the same capacity.
SECTION 10. SAVINGS CLAUSE. If this Article or any portion thereof
shall be invalidated on any ground by any court of competent jurisdiction,
then the Corporation shall nevertheless indemnify each director, executive
officer or other person whose indemnification is authorized by the board of
directors as to expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including a grand
jury proceeding and an action by the Corporation, to the full extent
permitted by any applicable portion of this Article that shall not have
been invalidated or by any other applicable law.
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ARTICLE IX
SUBSIDIARIES
SECTION 1. SUBSIDIARIES. The board of directors, the Chief Executive
Officer, or any executive officer designated by the board of directors may
vote the shares of stock owned by the Corporation in any subsidiary,
whether wholly or partly owned by the Corporation, in such manner as they
may deem in the best interests of the Corporation, including, without
limitation, for the election of directors of any subsidiary corporation, or
for any amendments to the charter or bylaws of any such subsidiary
corporation, or for the liquidation, merger or sale of assets of any such
subsidiary corporation. The board of directors, the Chief Executive
Officer, or any executive officer designated by the board of directors may
cause to be elected to the board of directors of any such subsidiary
corporation such persons as they shall designate, any of whom may, but need
not be, directors, executive officers, or other employees or agents of the
Corporation. The board of directors, the Chief Executive Officer, or any
executive officer designated by the board of directors may instruct the
directors of any such subsidiary corporation as to the manner in which they
are to vote upon any issue properly coming before them as the directors of
such subsidiary corporation, and such directors shall have no liability to
the Corporation as the result of any action taken in accordance with such
instructions.
SECTION 2. SUBSIDIARY OFFICERS NOT EXECUTIVE OFFICERS. The officers
of any subsidiary corporation shall not, by virtue of holding such title
and position, be deemed to be executive officers of the Corporation, nor
shall any such officer of a subsidiary corporation, unless he or she is
also a director or executive officer of the Corporation, be entitled to
have access to any files, records or other information relating or
pertaining to the Corporation, its business and finances, or to attend or
receive the minutes of any meetings of the board of directors or any
committee of the Corporation, except as and to the extent expressly
authorized and permitted by the board of directors or the Chief Executive
Officer.
ARTICLE X
CERTIFICATES OF STOCK
SECTION 1. FORM. Every holder of stock in the Corporation shall be
entitled to have a certificate, signed by, or in the name of the
Corporation by, the Chairman of the Board, a Vice Chairman of the Board,
the President, an Executive Vice President, a Senior Vice President, or a
Vice President and the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Corporation, certifying the number of shares
owned by him or her in the Corporation. The certificate may, but need not
be, sealed with the seal of the Corporation, or a facsimile thereof.
-19-
SECTION 2. FACSIMILE SIGNATURES. Where a certificate is signed (a)
by a transfer agent or an assistant transfer agent, or (b) by a transfer
clerk acting on behalf of the Corporation and a registrar, the signatures
of the Chairman of the Board, Vice Chairman of the Board, President,
Executive Vice President, Senior Vice President, Vice President, Treasurer,
Assistant Treasurer, Secretary or Assistant Secretary may be facsimiles.
In case any officer(s) or any holder(s) of a titled position who has
signed, or whose facsimile signature(s) has been used on, any certificate
shall cease to be such officer(s) or holder(s) before such certificate has
been delivered by the Corporation, such certificate may nevertheless be
issued and delivered as though the person(s) who signed such certificate or
whose facsimile signature(s) appears thereon continued to be such
officer(s) or holder(s) of such titled position.
SECTION 3. LOST CERTIFICATES. The officers may direct a new
certificate to be issued in place of any certificate theretofore issued by
the Corporation alleged to have been lost, stolen or destroyed upon the
making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate or certificates, the officers may, in their discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate, or his or her legal representative,
to advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as they may direct as indemnity against any
claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
SECTION 4. REGISTERED OWNER. The Corporation shall be entitled to
recognize the exclusive rights of a person registered on its books as the
owner of shares to receive dividends and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the
owner of shares; the Corporation shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part
of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Michigan.
ARTICLE XI
GENERAL PROVISIONS
SECTION 1. CHECKS. Any signature on any check, demand or note may be
signed by the facsimile signature of any person authorized by the board of
directors to sign under this Section 1 of Article XI. If any officer who
has signed or whose facsimile signature has been used shall cease to be
such officer, such document may nevertheless be signed by means of such
facsimile signature and delivered as though the person who signed such
document or whose facsimile signature has been used thereon had not ceased
to be such officer.
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SECTION 2. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the board of directors.
SECTION 3. SEAL. The corporate seal shall have inscribed thereon the
name of the Corporation and the words "Corporate Seal, Michigan." The seal
may be used by causing it or a facsimile thereof to be impressed, affixed,
reproduced or otherwise.
SECTION 4. VOTING SECURITIES. The Chief Executive Officer or any
executive officer designated by the board of directors shall have full
power and authority on behalf of the Corporation to attend and to act and
to vote, or to execute in the name or on behalf of the Corporation a proxy
authorizing an agent or attorney-in-fact for the Corporation to attend and
to act and to vote, at any meetings of security holders of corporations in
which the Corporation may hold securities, and at such meetings he or she
and his or her duly authorized agent or attorney-in-fact shall possess and
may exercise any and all rights and powers incident to the ownership of
such securities and which, as the owner thereof, the Corporation might have
possessed and exercised if present.
SECTION 5. DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Articles of Incorporation, if
any, may be declared by the board of directors at any regular or special
meeting pursuant to law. Dividends may be paid in cash, in property, or in
shares of capital stock, subject to the provisions of the Articles of
Incorporation.
SECTION 6. RESERVES. Before payment of any dividends, there may be
set aside out of any funds of the Corporation available for dividends such
sum or sums as the directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of
the Corporation, or for such other purpose as the directors shall think
conducive to the interests of the Corporation, and the directors may modify
or abolish any such reserve in the manner in which it was created.
ARTICLE XII
AMENDMENTS
These Bylaws may be amended, altered, changed, added to or repealed by
the shareholders at any regular or special meeting of the shareholders if
notice of such action be contained in the notice of such meeting, or by the
board of directors at any regular or special meeting of the board of
directors.
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OLD KENT FINANCIAL CORPORATION
SECRETARY'S CERTIFICATE
I, MARTIN J. ALLEN, JR., the duly elected, qualified and acting Senior
Vice President and Secretary of Old Kent Financial Corporation (the
"Corporation"), do hereby certify that attached hereto is a true and
correct copy of the Bylaws of the Corporation which were in full force and
effect as of the date written below.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal
of the Corporation on _______________________________, 19_____.
________________________________
Martin J. Allen, Jr.
Senior Vice President and
Secretary
[Corporate Seal]
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EXHIBIT 4(b)
MICHIGAN DEPARTMENT OF COMMERCE - CORPORATION AND SECURITIES BUREAU
DATE RECEIVED (FOR BUREAU USE ONLY)
OCT 11 1995
FILED
OCT 12 1995
NAME
ADMINISTRATOR
MICHIGAN DEPARTMENT OF COMMERCE
ADDRESS CORPORATION & SECURITIES BUREAU
CITY STATE ZIP CODE
EFFECTIVE DATE:
Document will be returned to the name and address you enter above
336-334
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES B PREFERRED STOCK
OF
OLD KENT FINANCIAL CORPORATION
Pursuant to Section 302 of
Michigan Business Corporation Act
David J. Wagner, President and Chief Executive Officer, and
Martin J. Allen, Jr., Senior Vice President and Secretary, of Old Kent
Financial Corporation, a corporation organized and existing under the
Michigan Business Corporation Act, in accordance with the provisions of
Section 302 thereof, DO HEREBY CERTIFY:
1. That pursuant to the authority conferred upon the Board of
Directors by the Restated Articles of Incorporation, the Board of Directors
on December 19, 1988, adopted resolutions creating a series of 300,000
shares of Preferred stock designated as Series B Preferred Stock.
2. That pursuant to the authority conferred upon the Board of
Directors by the Restated Articles of Incorporation, the Board of Directors
on August 21, 1995 adopted resolutions amending and ratifying the
Certificate of Designation, Preferences and Rights of Series B Preferred
Stock to provide as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall
be designated as "Series B Preferred Stock" and the number of shares
constituting such series shall be 500,000.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to the prior and superior rights of the holders
of any shares of any series of preferred stock ranking prior and
superior to the shares of Series B Preferred Stock, holders of
shares of Series B Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds
legally available for the purpose, quarterly dividends payable in
cash on the fifteenth day of March, June, September, and December
in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a
share or fraction of a share of Series B Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the
greater of (a) $25, or (b) subject to the provision for
adjustment hereinafter set forth, one hundred times the aggregate
per share amount of all cash dividends, and one hundred times the
aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares
of Common Stock (by reclassification or otherwise), declared on
the Common Stock, par value ($1.00) per share, of the Corporation
(the "Common Stock") since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series B Preferred Stock. In the event
the Corporation shall at any time after December 19, 1988 (the
"Rights Declaration Date"), (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the
amount to which holders of shares of Series B Preferred Stock
were entitled immediately prior to such event under clause (b) of
the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or
distribution on the Series B Preferred Stock as provided in
paragraph (a) above immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable
in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment
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Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $25 per share on the Series B Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series B Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such
shares of Series B Preferred Stock, unless the date of issue of
such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or
is a date after the record date for the determination of holders
of shares of Series B Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series B Preferred Stock in an
amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on
a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series B Preferred
Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than thirty
days prior to the date fixed for the payment thereof.
Section 3. VOTING RIGHTS. Each share of Series B Preferred Stock
shall entitle the holder thereof to one (1) vote on all matters submitted
to a vote of the shareholders of the Corporation. Except as otherwise
provided by law, the holders of shares of Series B Preferred Stock and the
holders of shares of Common Stock shall vote together as one class on all
matters submitted to a vote of shareholders of the Corporation. Except as
set forth herein, holders of Series B Preferred Stock shall have no special
voting rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set forth herein)
for taking any corporate action.
Section 4. CERTAIN RESTRICTIONS.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series B Preferred Stock as provided
in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on
shares of Series B Preferred Stock outstanding shall have been
paid in full, the Corporation shall not:
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(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire
for consideration any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series B Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series B Preferred Stock, except
dividends paid ratably on the Series B Preferred Stock and
all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series B Preferred Stock, provided that
the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series B Preferred Stock;
(iv) purchase or otherwise acquire for consideration
any shares of Series B Preferred Stock, or any shares of
stock ranking on a parity with the Series B Preferred Stock,
except in accordance with a purchase offer made in writing
or by publication (as determined by the Board of Directors)
to all holders of such shares upon such terms as the Board
of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the
respective series or classes.
(b) The Corporation shall not permit any subsidiary of the
corporation to purchase or otherwise acquire for consideration
any shares of stock of the Corporation unless the Corporation
could, under paragraph (a) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
Section 5. REACQUIRED SHARES. Any shares of Series B Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but unissued
shares of preferred stock and may be reissued as part of a new series of
preferred stock to be created by resolution or resolutions of the Board of
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Directors, subject to the conditions and restrictions on issuance set forth
herein.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no distribution
shall be made to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or
winding up) to the Series B Preferred Stock unless, prior
thereto, the holders of shares of Series B Preferred Stock shall
have received an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of
such payment, plus an amount equal to the greater of (i) $250 per
share, or (ii) an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to one
hundred times the aggregate amount to be distributed per share to
holders of shares of Common Stock (the "Series B Liquidation
Preference"). All such preferential amounts shall be paid or set
aside for payment before the payment or setting aside for payment
of any amount for, or the distribution of any assets of the
Corporation to, the holders of shares of any class or series of
stock ranking junior to Series B Preferred Stock as to assets of
the Corporation.
(b) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series B
Liquidation Preference and the liquidation preferences of all
other series of preferred stock that may be outstanding, if any,
then such remaining assets shall be distributed ratably to the
holders of all such shares of preferred stock (including Series B
Preferred Stock) in proportion to the full preferential amount to
which each such share shall be entitled.
(c) In the event the Corporation shall at any time after
the Rights Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the
aggregate amount to which holders of shares of Series B Preferred
Stock were entitled immediately prior to such event under clause
(ii) of Section 6(a) above shall be adjusted by multiplying such
by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. CONSOLIDATION, MERGER, ETC. In case the Corporation shall
enter into any consolidation, merger, combination, or other transaction in
which the shares of Common Stock are exchanged for or changed into other
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stock or securities, cash and/or any other property, then in any such case
the shares of Series B Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to one hundred times the aggregate
amount of stock, securities, cash and/or any other property (payable in
kind), as the case may be, into which or for which each share of Common
Stock is changed or exchanged. In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of
Series B Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 8. NO REDEMPTION. The shares of Series B Preferred Stock
shall not be redeemable.
Section 9. RANKING. The Series B Preferred Stock shall rank junior
to all other series of the Corporation's preferred stock as to the payment
of dividends and the distribution of assets, unless the terms of any such
series shall provide otherwise.
Section 10. AMENDMENT. The Restated Articles of Incorporation of the
Corporation shall not be further amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series B Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of a majority or more of the outstanding
shares of Series B Preferred Stock, voting separately as a class; PROVIDED,
HOWEVER, that at any time that there are no outstanding shares of Series B
Preferred Stock and no outstanding rights, warrants, or options to acquire
shares of Series B Preferred Stock, the Board of Directors may amend the
powers, preferences, and rights of the Series B Preferred Stock or convert
such shares of Series B Preferred Stock into authorized but unissued shares
of preferred stock which may be reissued as part of a new series of
preferred stock in accordance with the provisions of the Restated Articles
of Incorporation.
Section 11. FRACTIONAL SHARES. Series B Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of
all other rights of holders of Series B Preferred Stock.
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IN WITNESS WHEREOF, we have executed and subscribed this
Certificate and do affirm the foregoing as true under the penalties of
perjury as of the 6th day of October, 1995.
/S/ DAVID J. WAGNER
David J. Wagner
President and Chief Executive Officer
/S/ MARTIN J. ALLEN, JR.
Martin J. Allen, Jr.
Senior Vice President and Secretary
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EXHIBIT 10(p)
OLD KENT FINANCIAL CORPORATION
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement is made as of June 20, 1994,
between OLD KENT FINANCIAL CORPORATION ("Old Kent") and ROBERT H.
WARRINGTON ("Employee"). Old Kent has awarded restricted stock to
Employee, and Employee accepts this restricted stock award subject to the
terms, conditions, and provisions contained in this Agreement.
1. AWARD. Old Kent hereby awards to Employee 6,000 shares of Old
Kent's common stock, $1 par value, subject to the terms, conditions, and
provisions contained in this Agreement (the "Restricted Stock"). The
Restricted Stock shall be awarded on the condition that Employee remain in
the employ of Old Kent, or one or more of its subsidiaries, during the
Restricted Periods (as defined below).
2. TRANSFERABILITY. The Restricted Stock is not transferable by
Employee, whether voluntarily or involuntarily, by operation of law or
otherwise, during any Restricted Period, except by will or by the laws of
descent and distribution or to Old Kent in the event of voluntary
termination or termination for cause. If any assignment, pledge, transfer,
or other disposition, voluntary or involuntary, of the Restricted Stock
shall be made during any Restricted Period, or if any attachment,
execution, garnishment, or lien shall be issued against or placed upon the
Restricted Stock, then Employee's right to the Restricted Stock shall
immediately cease and terminate, and Employee shall promptly surrender all
Restricted Stock awarded under this Agreement to Old Kent.
3. LAPSING OF RESTRICTIONS. Except as otherwise provided in this
Agreement, the restrictions imposed on the Restricted Stock awarded
pursuant to this Agreement shall lapse as follows: restrictions on one-third
(1/3) of the shares of Restricted Stock, rounded down to the next
whole share, shall lapse four years from the date of this Agreement;
restrictions on one-half (1/2) of the then remaining shares of Restricted
Stock, rounded down to the next whole share, shall lapse five years from
the date of this Agreement; and restrictions on the remaining Restricted
Stock shall lapse six years from the date of this Agreement. The periods
during which Restricted Stock is subject to restrictions imposed under this
Agreement are known as "Restricted Periods." Old Kent's Personnel
Committee may accelerate the lapsing of the restrictions on the Restricted
Stock at any time, in its sole discretion.
4. DEATH OR DISABILITY; OTHER TERMINATION; CHANGE IN CONTROL.
(a) DEATH OR DISABILITY. In the event of termination of
employment during any Restricted Period by reason of Employee's death
or disability, Employee's right to all of the Restricted Stock shall
vest as of the date of termination of employment, and the Restricted
Stock may be transferred free of any restrictions under this
Agreement, except for those restrictions described in Paragraph 8 of
this Agreement.
(b) CHANGE IN CONTROL. In the event of a Change in Control
during any Restricted Period, Employee's right to all of the
Restricted Stock shall vest as of the date of the Change in Control,
and the Restricted Stock may be transferred free of any restrictions
under this Agreement, except for those restrictions described in
Paragraph 8 of this Agreement; PROVIDED, HOWEVER, that if the vesting,
when considered with all other payments and benefits from Old Kent to
Employee, constitutes a "parachute payment," as defined in
Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended,
then Employee's right to the Restricted Stock shall vest only to the
extent that the aggregate present value of all payments and benefits
in the nature of compensation to which Section 280G(b)(2) applies does
not exceed 299 percent of the Employee's Average Annual Compensation.
For purposes of this Agreement, (i) a "Change in Control" means a
change in control of Old Kent of a nature that would be required to be
reported in response to Item 5(f) of Schedule 14A promulgated under
the Securities Exchange Act of 1934 (the "Exchange Act"), provided
that, without limitation, such a change in control shall be deemed to
have occurred if (A) any "person", as such term is used in
Sections 13(d) and 14(d)(2) of the Exchange Act, is or becomes the
beneficial owner, directly or indirectly, of securities of Old Kent
representing twenty-five percent or more of the combined voting power
of Old Kent's then outstanding securities, or (B) during any period of
two consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of Old Kent cease for any reason to
constitute at least a majority of the Board (unless the election or
nomination for election by Old Kent's shareholders of each new
director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of
the period); and (ii) "Average Annual Compensation" means the
annualized average of Employee's gross income for federal income tax
purposes during the five-year period ending on the last day of Old
Kent's taxable year preceding the date of the Change in Control.
(c) OTHER TERMINATION. In the event of termination of
employment during any Restricted Period for any reason other than
death, disability, or after a Change in Control during a Restricted
Period, Employee's right to the Restricted Stock shall cease and
terminate as of the date of termination, and Employee shall promptly
surrender to Old Kent all Restricted Stock.
5. EMPLOYMENT BY OLD KENT. The award of Restricted Stock under this
Agreement shall not impose on Old Kent or any subsidiary any obligation to
retain Employee in its employ for any given period or upon any specific
terms of employment. Old Kent or any subsidiary may at any time dismiss
-2-
Employee from employment, free from any liability or claim, unless
otherwise expressly provided in any written agreement with Employee.
6. SHAREHOLDER RIGHTS. During the Restricted Periods, Employee
shall have all rights as a shareholder with respect to the Restricted Stock
awarded under this Agreement, including (i) the right to vote such shares
at shareholders' meetings, (ii) the right to receive all cash dividends
paid with respect to such stock, and (iii) the right to participate with
respect to the Restricted Stock in any stock dividend, stock split,
recapitalization, or other adjustment in the capital stock of Old Kent, or
any merger, consolidation, or other reorganization involving any increase,
decrease, or adjustment in Old Kent's capital stock. Any shares or other
security received as a result of any stock dividend, stock split, or
reorganization shall be subject to the same terms, conditions, and
restrictions as those relating to the Restricted Stock awarded under this
Agreement. After the restrictions applicable to the Restricted Stock
lapse, Employee shall have all shareholder rights, including the right to
transfer the shares, subject to such conditions as Old Kent may reasonably
specify to ensure compliance with federal and state securities laws.
7. WITHHOLDING. Old Kent or one of its subsidiaries shall be
entitled to (i) withhold and deduct from Employee's future wages (or from
other amounts that may be due and owing to Employee from Old Kent or a
subsidiary), or make other arrangements for the collection of, all legally
required amounts necessary to satisfy any and all federal, state, and local
withholding and employment-related tax requirements attributable to the
Restricted Stock awarded under this Agreement, including, without
limitation, the award or vesting of, or payments of dividends with respect
to, the Restricted Stock; or (ii) require Employee promptly to remit the
amount of such withholding to Old Kent or a subsidiary before taking any
action with respect to the Restricted Stock. Unless Old Kent's Personnel
Committee provides otherwise, withholding may be satisfied by delivery to
Old Kent or a subsidiary of shares of common stock of Old Kent equivalent
in value to the withholding obligation, which shares may be, but need not
be, shares of Restricted Stock as to which restrictions have lapsed or will
lapse.
8. SECURITIES LAWS. Employee hereby represents and warrants that
Employee is acquiring the Restricted Stock awarded under this Agreement for
his own account and investment and without any intent to resell or
distribute the Restricted Stock. Employee further agrees not to make any
sale, transfer, or other disposition of the Restricted Stock after any
Restricted Period except upon such conditions as Old Kent may reasonably
specify to ensure compliance with federal and state securities laws.
9. LEGEND. The certificates evidencing the shares of Restricted
Stock awarded pursuant to this Agreement shall bear the following legend:
The shares represented by this certificate were issued subject to
certain restrictions contained in a restricted stock agreement,
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and this certificate is held subject to the terms and conditions
contained in the restricted stock agreement. The terms and
conditions include a prohibition against the sale or transfer of
the stock represented by this certificate except in compliance
with that agreement.
10. EFFECTIVE DATE. This award of Restricted Stock shall be
effective as of the date first set forth above.
OLD KENT FINANCIAL CORPORATION
By /S/ MARTIN J. ALLEN, JR.
Martin J. Allen, Jr.
Its Sr. Vice President & Secretary
Employee:
/S/ ROBERT H. WARRINGTON
Signature Robert H. Warrington,
Employee
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EXHIBIT 10(q)
OLD KENT FINANCIAL CORPORATION
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement is made as of June 21, 1993,
between OLD KENT FINANCIAL CORPORATION ("Old Kent") and ROBERT H.
WARRINGTON ("Employee"). Old Kent has awarded restricted stock to
Employee, and Employee accepts this restricted stock award subject to the
terms, conditions, and provisions contained in this Agreement.
1. AWARD. Old Kent hereby awards to Employee 6,250 shares of Old
Kent's common stock, $1 par value, subject to the terms, conditions, and
provisions contained in this Agreement (the "Restricted Stock"). The
Restricted Stock shall be awarded on the condition that Employee remain in
the employ of Old Kent, or one or more of its subsidiaries, during the
Restricted Periods (as defined below).
2. TRANSFERABILITY. The Restricted Stock is not transferable by
Employee, whether voluntarily or involuntarily, by operation of law or
otherwise, during any Restricted Period, except by will or by the laws of
descent and distribution or to Old Kent in the event of voluntary
termination or termination for cause. If any assignment, pledge, transfer,
or other disposition, voluntary or involuntary, of the Restricted Stock
shall be made during any Restricted Period, or if any attachment,
execution, garnishment, or lien shall be issued against or placed upon the
Restricted Stock, then Employee's right to the Restricted Stock shall
immediately cease and terminate, and Employee shall promptly surrender all
Restricted Stock awarded under this Agreement to Old Kent.
3. LAPSING OF RESTRICTIONS. Except as otherwise provided in this
Agreement, the restrictions imposed on the Restricted Stock awarded
pursuant to this Agreement shall lapse as follows: restrictions on one-third
(1/3) of the shares of Restricted Stock, rounded down to the next
whole share, shall lapse four years from the date of this Agreement;
restrictions on one-half (1/2) of the then remaining shares of Restricted
Stock, rounded down to the next whole share, shall lapse five years from
the date of this Agreement; and restrictions on the remaining Restricted
Stock shall lapse six years from the date of this Agreement. The periods
during which Restricted Stock is subject to restrictions imposed under this
Agreement are known as "Restricted Periods." Old Kent's Personnel
Committee may accelerate the lapsing of the restrictions on the Restricted
Stock at any time, in its sole discretion.
4. DEATH OR DISABILITY; OTHER TERMINATION; CHANGE IN CONTROL.
(a) DEATH OR DISABILITY. In the event of termination of
employment during any Restricted Period by reason of Employee's death
or disability, Employee's right to all of the Restricted Stock shall
vest as of the date of termination of employment, and the Restricted
Stock may be transferred free of any restrictions under this
Agreement, except for those restrictions described in Paragraph 8 of
this Agreement.
(b) CHANGE IN CONTROL. In the event of a Change in Control
during any Restricted Period, Employee's right to all of the
Restricted Stock shall vest as of the date of the Change in Control,
and the Restricted Stock may be transferred free of any restrictions
under this Agreement, except for those restrictions described in
Paragraph 8 of this Agreement; PROVIDED, HOWEVER, that if the vesting,
when considered with all other payments and benefits from Old Kent to
Employee, constitutes a "parachute payment," as defined in
Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended,
then Employee's right to the Restricted Stock shall vest only to the
extent that the aggregate present value of all payments and benefits
in the nature of compensation to which Section 280G(b)(2) applies does
not exceed 299 percent of the Employee's Average Annual Compensation.
For purposes of this Agreement, (i) a "Change in Control" means a
change in control of Old Kent of a nature that would be required to be
reported in response to Item 5(f) of Schedule 14A promulgated under
the Securities Exchange Act of 1934 (the "Exchange Act"), provided
that, without limitation, such a change in control shall be deemed to
have occurred if (A) any "person", as such term is used in
Sections 13(d) and 14(d)(2) of the Exchange Act, is or becomes the
beneficial owner, directly or indirectly, of securities of Old Kent
representing twenty-five percent or more of the combined voting power
of Old Kent's then outstanding securities, or (B) during any period of
two consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of Old Kent cease for any reason to
constitute at least a majority of the Board (unless the election or
nomination for election by Old Kent's shareholders of each new
director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of
the period); and (ii) "Average Annual Compensation" means the
annualized average of Employee's gross income for federal income tax
purposes during the five-year period ending on the last day of Old
Kent's taxable year preceding the date of the Change in Control.
(c) OTHER TERMINATION. In the event of termination of
employment during any Restricted Period for any reason other than
death, disability, or after a Change in Control during a Restricted
Period, Employee's right to the Restricted Stock shall cease and
terminate as of the date of termination, and Employee shall promptly
surrender to Old Kent all Restricted Stock.
5. EMPLOYMENT BY OLD KENT. The award of Restricted Stock under this
Agreement shall not impose on Old Kent or any subsidiary any obligation to
retain Employee in its employ for any given period or upon any specific
terms of employment. Old Kent or any subsidiary may at any time dismiss
-2-
Employee from employment, free from any liability or claim, unless
otherwise expressly provided in any written agreement with Employee.
6. SHAREHOLDER RIGHTS. During the Restricted Periods, Employee
shall have all rights as a shareholder with respect to the Restricted Stock
awarded under this Agreement, including (i) the right to vote such shares
at shareholders' meetings, (ii) the right to receive all cash dividends
paid with respect to such stock, and (iii) the right to participate with
respect to the Restricted Stock in any stock dividend, stock split,
recapitalization, or other adjustment in the capital stock of Old Kent, or
any merger, consolidation, or other reorganization involving any increase,
decrease, or adjustment in Old Kent's capital stock. Any shares or other
security received as a result of any stock dividend, stock split, or
reorganization shall be subject to the same terms, conditions, and
restrictions as those relating to the Restricted Stock awarded under this
Agreement. After the restrictions applicable to the Restricted Stock
lapse, Employee shall have all shareholder rights, including the right to
transfer the shares, subject to such conditions as Old Kent may reasonably
specify to ensure compliance with federal and state securities laws.
7. WITHHOLDING. Old Kent or one of its subsidiaries shall be
entitled to (i) withhold and deduct from Employee's future wages (or from
other amounts that may be due and owing to Employee from Old Kent or a
subsidiary), or make other arrangements for the collection of, all legally
required amounts necessary to satisfy any and all federal, state, and local
withholding and employment-related tax requirements attributable to the
Restricted Stock awarded under this Agreement, including, without
limitation, the award or vesting of, or payments of dividends with respect
to, the Restricted Stock; or (ii) require Employee promptly to remit the
amount of such withholding to Old Kent or a subsidiary before taking any
action with respect to the Restricted Stock. Unless Old Kent's Personnel
Committee provides otherwise, withholding may be satisfied by delivery to
Old Kent or a subsidiary of shares of common stock of Old Kent equivalent
in value to the withholding obligation, which shares may be, but need not
be, shares of Restricted Stock as to which restrictions have lapsed or will
lapse.
8. SECURITIES LAWS. Employee hereby represents and warrants that
Employee is acquiring the Restricted Stock awarded under this Agreement for
his own account and investment and without any intent to resell or
distribute the Restricted Stock. Employee further agrees not to make any
sale, transfer, or other disposition of the Restricted Stock after any
Restricted Period except upon such conditions as Old Kent may reasonably
specify to ensure compliance with federal and state securities laws.
9. LEGEND. The certificates evidencing the shares of Restricted
Stock awarded pursuant to this Agreement shall bear the following legend:
The shares represented by this certificate were issued subject to
certain restrictions contained in a restricted stock agreement,
-3-
and this certificate is held subject to the terms and conditions
contained in the restricted stock agreement. The terms and
conditions include a prohibition against the sale or transfer of
the stock represented by this certificate except in compliance
with that agreement.
10. EFFECTIVE DATE. This award of Restricted Stock shall be
effective as of the date first set forth above.
OLD KENT FINANCIAL CORPORATION
By /S/ MARTIN J. ALLEN, JR.
Martin J. Allen, Jr.
Its Sr. Vice President & Secretary
Employee: Robert H. Warrington
/S/ ROBERT H. WARRINGTON
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EXHIBIT 10(o)
EXECUTIVE SEVERANCE AGREEMENT
THIS IS AN AGREEMENT between OLD KENT FINANCIAL CORPORATION (the
"Corporation") whose principal offices are located at One Vandenberg
Center, Grand Rapids, Michigan 49503, and ROBERT H. WARRINGTON (the
"Employee"), who resides at 7725 Kirkwall, S.E., Ada, Michigan 49301, dated
December 16, 1991.
1. TERM OF AGREEMENT. This Agreement will begin on the date entered
above (the "Commencement Date") and will continue in effect through the
third anniversary of the Commencement Date. However, on the first
anniversary of the Commencement Date, and on each such anniversary date
thereafter, the term of this Agreement will be extended automatically for
one additional year (to a total of three years) unless, not later than six
months prior to such anniversary date, the Corporation gives written notice
to the Employee that it has elected not to extend this Agreement. In
addition, if a Change of Control occurs during the term of this Agreement,
this Agreement will continue in effect for at least 36 months beyond the
end of the month in which any Change of Control occurs.
2. DEFINITIONS. The following defined terms shall have the meanings
set forth below, for purposes of this Agreement.
(a) CHANGE OF CONTROL. "Change of Control" means an
occurrence of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Without limiting the inclusiveness of the
definition in the preceding sentence, a Change of Control of the
Corporation shall be deemed to have occurred if:
(i) Any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the
Corporation representing twenty-five percent (25%) or more
of the combined voting power of the Corporation's then-
outstanding securities; or
(ii) At any time a majority of the Board of Directors
of the Corporation is comprised of other than Continuing
Directors (for purposes of this paragraph, the term
Continuing Director means a director who was either (A)
first elected or appointed as a Director prior to the date
of this Agreement; or (B) subsequently elected or appointed
as a director if such director was nominated or appointed by
at least a majority of the then-Continuing Directors); or
(iii) Any of the following occur:
(A) any merger or consolidation of the
Corporation, other than a merger or consolidation in
which the voting securities of the Corporation
immediately prior to the merger or consolidation
continue to represent (either by remaining outstanding
or being converted into securities of the surviving
entity) fifty-one percent (51%) or more of the combined
voting power of the Corporation or surviving entity
immediately after the merger or consolidation with
another entity;
(B) any sale, exchange, lease, mortgage, pledge,
transfer, or other disposition (in a single transaction
or a series of related transactions) of all or
substantially all of the assets of the Corporation
which shall include, without limitation, the sale of
assets or earning power aggregating more than fifty
percent (50%) of the assets or earning power of the
Corporation on a consolidated basis;
(C) any liquidation or dissolution of the
Corporation;
(D) any reorganization, reverse stock split, or
recapitalization of the Corporation which would result
in a Change of Control; or
(E) any transaction or series of related
transactions having, directly or indirectly, the same
effect as any of the foregoing; or any agreement,
contract, or other arrangement providing for any of the
foregoing.
(b) DISABILITY. "Disability" means that, as a result of
Employee's incapacity due to physical or mental illness, the
Employee shall have been absent from the full-time performance of
his duties with the Corporation for 12 consecutive months and,
within 30 calendar days after written notice of suspension due to
Disability is given, the Employee shall not have returned to the
full-time performance of his duties.
(c) CAUSE. "Cause" means (i) Employee's willful and
continued failure to substantially perform Employee's duties with
the Corporation under this Agreement (other than any such failure
resulting from Disability or occurring after issuance by Employee
of a Notice of Termination for Good Reason), after a written
demand for substantial performance is delivered to the Employee
that specifically identifies the manner in which the Corporation
-2-
believes that the Employee has willfully failed to substantially
perform his duties, and after the Employee has failed to resume
substantial performance of his duties on a continuous basis
within 14 calendar days of receiving such demand; (ii) the
Employee willfully engaging in conduct (other than conduct
covered under (i) above), which is demonstrably and materially
injurious to the Corporation, monetarily or otherwise; or (iii)
the Employee's having been convicted of a felony which impairs
his ability substantially to perform his duties with the
Corporation. For purposes of this subparagraph, no act, or
failure to act, on the Employee's part shall be deemed "willful"
unless done, or omitted to be done, by the Employee not in good
faith and without reasonable belief that the action or omission
was in the best interest of the Corporation.
(d) GOOD REASON. For purposes of this Agreement, "Good
Reason" means the occurrence of any one or more of the following
without the Employee's express written consent:
(i) The assignment to Employee of duties inconsistent
with the duties, responsibilities, and status of Employee's
position as of the day prior to the Change of Control of the
Corporation;
(ii) A reduction by the Corporation in Employee's base
salary as of the day prior to the Change of Control, or
reduction of Employee's most recent target incentive award
opportunity prior to the Change of Control under the
Corporation's Annual Incentive Plan, or any successor plan;
(iii) The Corporation's requiring Employee to be based
at a location in excess of 50 miles from the location where
Employee is currently based;
(iv) The failure of the Corporation to obtain a
satisfactory agreement from any successor to the Corporation
to assume and agree to perform this Agreement, as
contemplated in Paragraph 7 hereof;
(v) Any termination by the Corporation of Employee's
employment that is not effected pursuant to a Notice of
Termination; and
(vi) Any termination of Employee's employment,
reduction in Employee's compensation or benefits, or adverse
change in Employee's location or duties, if such
termination, reduction or adverse change occurs within 12
months before a Change of Control, is in contemplation of
such Change in Control, and is taken to avoid the effect of
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this Agreement should such action occur after such Change in
Control.
The existence of Good Reason shall not be affected by
Employee's incapacity due to physical or mental illness.
Employee's continued employment shall not constitute a waiver of
Employee's rights with respect to any circumstance constituting
Good Reason hereunder.
(e) NOTICE OF TERMINATION. "Notice of Termination" means a
written notice indicating the specific termination provision in
this Agreement relied upon and setting forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of the employment under the provision so indicated.
(f) POTENTIAL CHANGE OF CONTROL. "Potential Change of
Control" means: (i) the Corporation's entering into or the Board
of Director's authorizing an agreement, the consummation of which
would result in the occurrence of a Change of Control; or (ii)
adoption by the Board of Directors of a resolution to the effect
that, for purposes of this Agreement, a Potential Change of
Control has occurred.
(g) TRUST. "Trust" means the trust to be created pursuant
to Paragraph 6 of this Agreement in the event of a Change of
Control or Potential Change of Control.
(h) TRUST AGREEMENT. "Trust Agreement" means the Trust
Agreement attached as Exhibit A to this Agreement.
(i) TRUSTEE. "Trustee" means the Trustee of the Trust.
3. ELIGIBILITY FOR SEVERANCE BENEFITS. Subject to Paragraph 5, the
Employee shall receive the Severance Benefits described in Paragraph 4 if
the Employee's employment is terminated during the term of this Agreement,
and:
(a) the termination occurs within 12 months after a Change
of Control, unless the termination is (i) because of Employee's
death or Disability, (ii) by the Corporation for Cause, or (iii)
by the Employee other than for Good Reason; or
(b) the Corporation terminates the employment within 12
months before a Change of Control, in contemplation of such
Change of Control, and to avoid the effect of this Agreement
should such action occur after such Change of Control.
4. SEVERANCE BENEFITS. Subject to Paragraph 5, the Employee shall
receive the following Severance Benefits (in addition to accrued
compensation and vested benefits) if eligible under Paragraph 3:
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(a) Employee's annual base salary at the rate in effect
immediately prior to the Change of Control or, if greater, at the
rate in effect at the time Notice of Termination is given (or on
the date the employment is terminated if no Notice of Termination
is required), multiplied by one;
(b) One hundred percent of Employee's annual target bonus
under the Corporation's Annual Incentive Plan in effect at the
time Notice of Termination is given (or on the date the
employment is terminated if no Notice of Termination is required)
or, if greater, the average bonus paid to Employee over the
preceding three-year period, multiplied by one; and
(c) For a one-year period after the date the employment is
terminated, the Corporation will arrange to provide to Employee
at the Corporation's expense, with:
(i) the same health care coverage Employee had prior
to the termination (or, if more favorable to Employee, that
furnished generally to salaried employees of the
Corporation) including, but not limited to, hospital,
surgical, medical, dental, and dependent coverages. Health
care benefits otherwise receivable by Employee pursuant to
this Paragraph 4(c) shall be reduced to the extent
comparable benefits are actually received by Employee from a
subsequent employer during the one-year period following the
date the employment is terminated and any such benefits
actually received by Employee shall be reported to the
Corporation;
(ii) life and accidental death and dismemberment
insurance coverage (including supplemental coverage purchase
opportunity and double indemnity for accidental death) equal
(including policy terms) to that in effect at the time
Notice of Termination is given or, if more favorable to
Employee, equal to that in effect at the date the Change of
Control occurs; and
(iii) disability insurance coverage (including policy
terms) equal to that in effect at the time Notice of
Termination is given or, if more favorable to Employee,
equal to that in effect immediately prior to the Change of
Control; provided, however, that no income replacement
benefits will be payable under such disability policy with
regard to the one-year period following a termination of
employment provided that the payments payable under
subparagraphs 4(a) and (b) above have been made.
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(d) In computing and determining Severance Benefits under
subparagraphs 4(a), (b), and (c) above, a decrease in Employee's
salary, target bonus, or insurance benefits shall be disregarded
if such decrease occurs within 12 months before a Change of
Control, is in contemplation of such Change of Control, and is
taken to avoid the effect of this Agreement should such action be
taken after such Change of Control; in such event, the salary,
target bonus, and/or insurance benefits used to determine
Severance Benefits shall be that in effect immediately before the
decrease that is disregarded pursuant to this subparagraph 4(d).
(e) Employee shall not be required to mitigate the amount
of any payment provided for in this paragraph 4 by seeking other
employment or otherwise, nor shall the amount of any payment
provided for in this paragraph be reduced by any compensation
earned by Employee as the result of employment by another
employer after the date the employment is terminated, or
otherwise, with the exception of a reduction in health insurance
coverage as provided in subparagraph 4(c)(i).
The payments provided in subparagraphs 4(a) and (b) above shall
be made not later than ten business days following the date the employment
terminates.
Any termination by the Corporation for Cause or due to Employee's
Disability, or by Employee for Good Reason shall be communicated by Notice
of Termination to the other party.
5. MAXIMUM PAYMENTS. Notwithstanding any provision in this
Agreement to the contrary, if part or all of any amount to be paid to
Employee by the Corporation under this Agreement or otherwise constitute a
"parachute payment" (or payments) under Section 280G or any other similar
provision of the Internal Revenue Code of 1986, as amended (the "Code"),
the following limitation shall apply:
If the aggregate present value of such parachute payments (the
"Parachute Amount") exceeds 2.99 times Employee's "base amount"
as defined in Section 280G of the Code, and if as a result the
amounts otherwise payable to or for the benefit of the Employee
subsequent to the termination of his employment, and taken into
account in calculating the Parachute Amount (the "termination
payments"), shall be reduced and/or delayed, as further described
below, to the extent necessary so that the Parachute Amount is
equal to 2.99 times the Employee's "base amount."
Any determination or calculation described in this Paragraph 5
shall be made by the Corporation's independent accountants. Such
determination, and any proposed reduction and/or delay in termination
payments shall be furnished in writing promptly by the accountants to the
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Employee. The Employee may then elect, in his sole discretion, which and
how much of any particular termination payment shall be reduced and/or
delayed and shall advise the Corporation in writing of his election, within
30 days of the accountant's determination, of the reduction or delay in
termination payments. If no such election is made by the Employee within
such 30-day period, the Corporation may elect which and how much of any
termination payment shall be reduced and/or delayed and shall notify the
Employee promptly of such election. As promptly as practicable following
such determination and the elections hereunder, the Corporation shall pay
to or distribute to or for the benefit of the Employee such amounts as are
then due to the Employee.
Any disagreement regarding a reduction or delay in termination
payments will be subject to arbitration under Paragraph 16 of this
Agreement. Neither the Employee's designation of specific payments to be
reduced or delayed, nor the Employee's acceptance of reduced or delayed
payments, shall waive the Employee's right to contest such reduction or
delay.
6. ESTABLISHMENT OF TRUST. In the event of a Change of Control or a
Potential Change of Control, the Corporation shall create a Trust for the
benefit of Employee and shall fund such Trust in an amount equal to the
aggregate severance payments which may become due to Employee under
subparagraphs 4(a) and (b) of this Agreement. The Trust Agreement shall
provide that upon a Change of Control (i) the Trust shall not be revoked or
the principal thereof invaded, without the written consent of Employee;
(ii) the Trustee shall pay all amounts properly payable to Employee under
subparagraphs 4(a) and (b) of this Agreement when and as the same become
due and payable pursuant to the Agreement; and (iii) all unexpended funds
in such Trust shall revert to the Corporation upon such payment. The
trustee shall be a national or state bank (including an affiliate of the
Corporation) having a combined capital and surplus of not less than
$50,000,000, selected by the Corporation. Nothing in this paragraph shall
relieve the Corporation of any of its obligations under this Agreement,
except that actual disbursements from the Trust to an Employee in
satisfaction of payments under this Agreement will be applied to reduce the
Corporation's obligations under this Agreement, to the extent of such
disbursement. Any funds including interest or investment earnings thereon,
remaining in the trust fund shall revert and be paid to the Corporation if
(i) a Change of Control has not occurred; and (ii) a court of competent
jurisdiction determines that the circumstances giving rise to that
particular funding of the Trust no longer exist. A copy of the Trust
Agreement is attached as Exhibit A to this Agreement and is incorporated by
reference herein.
Amounts placed in trust pursuant to this Paragraph 6 shall not be
subject to withdrawal by Employee and shall be paid to Employee only in
accordance with the terms of this Agreement. No amount placed in trust
pursuant to this Paragraph 6 shall be subject to assignment, transfer,
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sale, pledge, encumbrance, alienation or charge by Employee or any
beneficiary. Any attempt to assign, transfer, sell, pledge, encumber,
alienate or charge any amount placed in trust hereunder shall be without
effect. Neither Employee, nor any beneficiary, nor any other person shall
be deemed to have, pursuant to this Agreement, any property interest, legal
or equitable, in any specific asset of the Corporation. Employee shall be
a general unsecured creditor with respect to the promises of the
Corporation made herein.
Notwithstanding any other provision of this Paragraph 6 to the
contrary, the Trust Agreement shall provide that the Board of Directors and
the Chief Executive Officer of the Corporation shall have the duty to
inform the Trustee of the Corporation's insolvency, which shall be deemed
to occur if the Corporation is unable to pay its debts as they come due or
if the Corporation becomes subject to a proceeding as a debtor under the
Federal Bankruptcy Code (or any successor federal statute). If the Trustee
receives notice of insolvency from the Corporation or receives from any
other person claiming to be a creditor of the Corporation a written
allegation that the Corporation is insolvent, the Trustee shall proceed as
provided in the Trust Agreement to independently determine whether such
insolvency exists, and shall suspend all benefit payments to Employees if
called for by the Trust Agreement. The Trustee shall have no obligation to
investigate the financial condition of the Corporation prior to receiving a
notice or allegation of insolvency. If the Trustee determines that the
Corporation is insolvent, the Trustee shall make available the amounts
placed in trust pursuant to this Paragraph 6 to satisfy claims of the
Corporation's general creditors, as provided in the Trust Agreement.
Employees shall have no greater rights than other general creditors of the
Corporation with respect to any funds held in trust pursuant to this
Paragraph 6. Following a determination of insolvency, the Trustee shall
resume payments to Employee (and shall pay any suspended benefits) upon
termination of Insolvency Administration, as provided in the Trust
Agreement, if and when it determines that the Corporation is again solvent.
7. SUCCESSORS; BINDING AGREEMENTS. This Agreement shall inure to
the benefit of and be enforceable by Employee's personal and legal
representatives, executors, administrators, successors, heirs,
distributees, devisees, and legatees. Employee's rights and benefits under
this Agreement may not be assigned, except that if Employee dies while any
amount would still be payable to Employee hereunder if Employee had
continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement, to the
beneficiaries designated by the Employee to receive benefits under this
Agreement in a writing on file with the Corporation at the time of the
Employee's death or, if there is no such beneficiary, to Employee's estate.
The Corporation will require any successor (whether direct or indirect, by
purchase, merger, consolidation, or otherwise) to all or substantially all
of the business and/or assets of the Corporation (or of any division or
subsidiary thereof employing Employee) to expressly assume and agree to
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perform this Agreement in the same manner and to the same extent that the
Corporation would be required to perform it if no such succession had taken
place. Failure of the Corporation to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle Employee to compensation from the Corporation
in the same amount and on the same terms to which Employee would be
entitled hereunder if Employee terminated the employment for Good Reason
following a Change of Control.
8. WITHHOLDING OF TAXES. The Corporation may withhold from any
amounts payable under this Agreement all federal, state, city, or other
taxes as required by law.
9. NOTICE. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt required, postage prepaid, addressed to the
respective addressees set forth on the first page of this Agreement, or at
such other addresses as the parties may designate in writing.
10. MISCELLANEOUS. No provision of this Agreement may be modified,
waived, or discharged unless such waiver, modification, or discharge is
agreed to in writing and signed by Employee and such officer as may be
specifically designated by the Board of Directors of the Corporation. The
validity, interpretation, construction, and performance of this Agreement
shall be governed by the laws of the State of Michigan.
11. EMPLOYMENT RIGHTS. This Agreement shall not confer upon Employee
any right to continue in the employ of the Corporation or its subsidiaries
and shall not in any way affect the right of the Corporation or its
subsidiaries to dismiss or otherwise terminate Employee's employment at any
time with or without cause.
12. NO VESTED INTEREST. Neither Employee nor Employee's beneficiary
shall have any right, title, or interest in any benefit under this
Agreement prior to the occurrence of the right to the payment thereof, or
in any property of the Corporation or its subsidiaries or affiliates.
13. PRIOR AGREEMENTS. This Agreement contains the understanding
between the parties hereto with respect to severance benefits in connection
with a Change of Control of the Corporation and supersedes any such prior
agreement between the Corporation (or any predecessor of the Corporation)
and Employee. If there is any discrepancy or conflict between this
Agreement and any plan, policy, or program of the Corporation regarding any
term or condition of severance benefits in connection with a Change of
Control of the Corporation, the language of this Agreement shall govern.
14. VALIDITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
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15. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
16. ARBITRATION. The sole and exclusive method for resolving any
dispute arising out of this Agreement shall be arbitration in accordance
with this paragraph. Except as provided otherwise in this paragraph,
arbitration pursuant to this paragraph shall be governed by the Commercial
Arbitration Rules of the American Arbitration Association. A party wishing
to obtain arbitration of an issue shall deliver written notice to the other
party, including a description of the issue to be arbitrated. Within 15
days after either party demands arbitration, the Corporation and the
Employee shall each appoint an arbitrator. Within 15 additional days,
these two arbitrators shall appoint the third arbitrator by mutual
agreement; if they fail to agree within said 15-day period, then the third
arbitrator shall be selected promptly pursuant to the rules of the American
Arbitration Association for Commercial Arbitration. The arbitration panel
shall hold a hearing in Kent County, Michigan, within 90 days after the
appointment of the third arbitrator. The fees and expenses of the
arbitrator, and any American Arbitration Association fees, shall be paid by
the Corporation. Both the Corporation and the Employee may be represented
by counsel and may present testimony and other evidence at the hearing.
Within 90 days after commencement of the hearing, the arbitration panel
will issue a written decision; the majority vote of two of the three
arbitrators shall control. The majority decision of the arbitrators shall
be final and binding on the parties, and shall be enforceable in accordance
with law. Judgment may be entered on the arbitrators' award in any court
having jurisdiction. The Employee shall be entitled to seek specific
performances of his rights under this Agreement during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
The Corporation will reimburse Employee for all reasonable attorney fees
incurred by Employee as the result of any arbitration with regard to any
issue under this Agreement (or any judicial proceeding to compel or to
enforce such arbitration): (i) which is initiated by Employee if the
Corporation is found in such proceeding to have violated this Agreement
substantially as alleged by Employee; or (ii) which is initiated by the
Corporation, unless Employee is found in such proceeding to have violated
this Agreement substantially as alleged by the Corporation.
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IN WITNESS WHEREOF, the parties have signed this Agreement as of
the day and year written above.
OLD KENT FINANCIAL
CORPORATION
By: /S/ JOHN C. CANEPA
John C. Canepa
Its: Chairman, President and Chief
Executive Officer
"Corporation"
/S/ ROBERT H. WARRINGTON
Robert H. Warrington
"Employee"
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WARNER NORCROSS & JUDD LLP
Attorneys At Law
900 Old Kent Building
111 Lyon Street, N.W.
Grand Rapids, Michigan 49503-2489
Telephone: (616) 752-2000
Fax: (616) 752-2500
February 23, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
EDGAR TRANSMISSION
Re: Old Kent Financial Corporation
Commission File No. 0-12216
Form 8-K Current Report
Dear Sir or Madam:
Transmitted with this letter is the Form 8-K Current Report
of Old Kent Financial Corporation. This filing is transmitted
electronically through the EDGAR system and is subject to Regulation
S-T. Pursuant to Item 309, only one copy of this electronically
formatted document is transmitted.
This firm has on file a manually signed counterpart of each
signed document that appears in electronic format in the filing. We
hereby undertake, on behalf of Old Kent, to retain such signed
documents for a period of five years and to furnish any such signed
document to the Commission or its staff upon request.
If the Commission staff has any comments or will require any
further information, please call me at (616) 752-2752.
Very truly yours,
/s/ Gordon R. Lewis
Gordon R. Lewis
EXHIBIT 10(f) As amended through
December 18, 1995
RESTRICTED STOCK PLAN OF 1987
OF
OLD KENT FINANCIAL CORPORATION
SECTION 1
PURPOSE
1.1 The purpose of this Plan is to provide an opportunity for certain
key employees of Old Kent Financial Corporation or its subsidiaries to
acquire shares of Capital Stock of the Corporation and thereby to have an
additional incentive to contribute to the prosperity of the Corporation.
SECTION 2
DEFINITIONS
The following words have the following meanings unless a
different meaning is plainly required by the context:
2.1 "Average Annual Compensation" means the annualized average of the
Recipient's gross income for federal income tax purposes during the five
(5) year period ending on the last day of the Corporation's taxable year
preceding the date of the Change in Control.
2.2 "Board" means the board of directors of the Corporation.
2.3 "Capital Stock" means the Common Stock (par value $1 per share)
of the Corporation.
2.4 "Change in Control" means a change in control of the Corporation
of a nature that would be required to be reported in response to Item 5(f)
of Schedule 14A of Regulation 14a promulgated under the Exchange Act,
provided that, without limitation, such change in control shall be deemed
to have occurred if (i) any "person" [as such term is used in
Sections 13(d) and 14(d)(2) of the Exchange Act] is or becomes the
beneficial owner, directly or indirectly, of securities of the Corporation
representing twenty-five percent (25%) or more of the combined voting power
of the Corporation's then outstanding securities, or (ii) during any period
of two (2) consecutive years, individuals who at the beginning of such
period constitute the Board cease for any reason to constitute at least a
majority of the Board (unless the election or nomination for election by
the Corporation's shareholders of each new director was approved by a vote
of at least two-thirds (2/3) of the directors then still in office who were
directors at the beginning of the period).
2.5 "Code" means the Internal Revenue Code of 1986, as amended.
2.6 "Committee" means the Compensation Committee of the Board or such
other committee as the Board shall designate for the purpose of
administration of the Plan.
2.7 "Corporation" means Old Kent Financial Corporation.
2.8 "Early Retirement" means the voluntary termination of all
employment by the Employee after the Employee has attained 55 years of age
and completed 10 years of service with the Corporation or any of its
subsidiaries.
2.9 "Employee" means any regular, salaried employee, including any
officer in the service of the Corporation or any of its subsidiaries,
except any person who serves only as a director. An individual's status as
a regular, salaried employee shall not be affected by a leave of absence
without pay.
2.10 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
2.11 "Normal Retirement" means the voluntary termination of all
employment by the Employee after the Employee has attained 65 years of age.
2.12 "Plan" means the Corporation's Restricted Stock Plan of 1987 as
in effect from time to time.
2.13 "Prior Plan" means the Restricted Stock Plan of the Corporation
adopted by the Corporation's shareholders on April 21, 1980.
2.14 "Recipient" means an Employee to whom Restricted Stock has been
awarded under Section 3 of the Plan.
2.15 "Restricted Period" means a period of five (5) years following
the date of the award of the Restricted Stock or a lesser period provided
by Section 3.3 of the Plan.
2.16 "Restricted Stock" means Capital Stock awarded to an Employee
under Section 3 of the Plan, including Capital Stock awarded in exchange
for the return of certain stock awarded under the Prior Plan, as provided
in Section 3.3 of this Plan.
2.17 "Subsidiary" means any corporation of which a majority of the
outstanding voting stock is directly or indirectly owned or controlled by
the Corporation, or by one or more subsidiaries.
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SECTION 3
ADMINISTRATION
3.1 The Committee shall administer the Plan, have sole authority to
award Restricted Stock under the Plan to any Employee and to determine all
questions arising in connection with the Plan, including its
interpretation. All decisions and selections made by the Committee shall
be final, provided, however, that the Committee may not award Restricted
Stock to any member of the Committee. No member of the Committee shall be
liable for any action or determination made in good faith with respect to
the Plan or any Restricted Stock awarded under it.
3.2 The awarding of Restricted Stock pursuant to the Plan shall be
entirely within the discretion of the Committee and nothing herein
contained shall be construed to give Employee any right to participate
under the Plan or receive any Restricted Stock under it.
3.3 The Committee may, in its sole discretion, award to an Employee
who holds shares of Capital Stock which are subject to the restricted
period of the Prior Plan and who returns the shares to the Corporation, an
equal number of shares of Restricted Stock under this Plan. Restricted
Stock awarded pursuant to this Section 3.3 shall be subject to the terms
and conditions of Section 5 of this Plan, EXCEPT that the Restricted Period
shall be reduced by the amount of time the Recipient held the returned
shares under the Prior Plan.
SECTION 4
STOCK
4.1 The total number of authorized and unissued shares of Capital
Stock which may be awarded under the Plan shall not exceed 368,304 shares
plus the number of shares of Capital Stock subject to the restricted period
of the Prior Plan as of the effective date of this Plan which are returned
to the Corporation after the effective date of this Plan, but reduced by
the number of shares issued under the Prior Plan after the effective date
of this Plan and not returned to the Corporation by reason of the terms and
conditions of this Plan or the Prior Plan, subject to adjustments
authorized by Section 4.5 of this Plan. The aggregate number of such
shares which may be awarded under the Plan to any one person shall not
exceed 10% of the total number of shares which may be awarded under the
Plan, provided, however, that such limitation shall not effect the number
of shares previously awarded under the Plan to a recipient if such award
was within the limitation at the time the award was made.
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4.2 Restricted Stock awarded under the Plan shall be subject to the
restrictions set forth in Section 5.
4.3 The award of Restricted Stock under the Plan shall be evidenced
by an Agreement between the Corporation and the Recipient containing the
terms and conditions of the award as described in Section 5 and such other
provisions as the Committee may deem appropriate.
4.4 Any certificates evidencing shares of Restricted Stock awarded
pursuant to the Plan shall bear the following legend:
The shares represented by this certificate were issued
subject to certain restrictions under the corporation's
Restricted Stock Plan of 1987. This certificate is held subject
to the terms and conditions contained in a restricted stock
agreement which includes a prohibition against the sale or
transfer of the stock represented by this certificate except in
compliance with that agreement.
4.5 If any increase, decrease or adjustment in the Capital Stock of
the Corporation is made as a result of a stock dividend, stock split,
reverse stock split, recapitalization or other adjustment in the Capital
Stock of the Corporation or as a result of a merger, consolidation or other
reorganization of the Corporation, the Board shall make an appropriate
adjustment in the aggregate number of shares subject to the Plan, and the
maximum number of shares which may be awarded to any person; provided,
however, that any fractional shares resulting from any such adjustment
shall be eliminated.
SECTION 5
TERMS AND CONDITIONS OF RESTRICTED STOCK
5.1 The award of Restricted Stock under the Plan shall be subject to
the following terms and conditions which shall be contained in the
Agreement referred to in Section 4.3:
(a) The Restricted Stock shall be awarded on the condition
that the Recipient remain in the employ of the Corporation, or
one or more of its subsidiaries, during the Restricted Period,
but such condition shall have no effect on the right of the
Corporation or any such subsidiary to terminate the Recipient's
employment at any time.
(b) In the event of termination of employment during the
Restricted Period for any reason other than death, Early
Retirement, Normal Retirement or after a Change in Control during
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the Restricted Period, the Recipient's right to the Restricted
Stock shall cease and terminate as of the date of termination and
the Recipient shall promptly surrender to the Corporation such
Restricted Stock.
(1) EARLY RETIREMENT. In the event of termination of
employment during the Restricted Period by reason of Early
Retirement, the Recipient's right to the shares of
Restricted Stock shall terminate as follows:
(i) If the Recipient terminates the Recipient's
employment during the first year of the Restricted
Period, the Recipient's right to all of the shares of
Restricted Stock shall terminate.
(ii) If the Recipient terminates the Recipient's
employment during the second year of the Restricted
Period, the Recipient's right to eighty percent (80%)
of the shares of Restricted Stock shall terminate.
(iii) If the Recipient terminates the Recipient's
employment during the third year of the Restricted
Period, the Recipient's right to sixty percent (60%) of
the shares of Restricted Stock shall terminate.
(iv) If the Recipient terminates the Recipient's
employment during the fourth year of the Restricted
Period, the Recipient's right to forty percent (40%) of
the shares of Restricted Stock shall terminate.
(v) If the Recipient terminates the Recipient's
employment during the fifth year of the Restricted
Period, the Recipient's right to twenty percent (20%)
of the shares of Restricted Stock shall terminate.
In the event of termination of employment by
reason of Early Retirement within the Restricted Period, the
Recipient shall promptly surrender to the Corporation those
shares of Restricted Stock in which the Recipient's right
has terminated.
(2) DEATH OR NORMAL RETIREMENT. In the event of
termination of employment during the Restricted Period by
reason of death or Normal Retirement, the Recipient's right
to all of the Recipient's Restricted Stock shall vest as of
the date of termination of employment and the Recipient's
Restricted Stock may be transferred free of the restrictions
under this Plan, except for those described in
subsection (f) of this Section.
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(3) CHANGE IN CONTROL. In the event of a Change in
Control during the Restricted Period, the Recipient's right
to all of the Recipient's Restricted Stock shall vest as of
the date of the Change in Control and the Recipient's
Restricted Stock may be transferred free of the restrictions
under this Plan, except for those restrictions described in
subsection (f) of this Section; PROVIDED, however, that if
the vesting, when considered with all other payments and
benefits from the Corporation to the Recipient, constitutes
a "parachute payment," as defined in Section 280G(b)(2)
of the Code, then the Recipient's right to the Restricted
Stock shall vest only to the extent that the aggregate
present value of all payments and benefits in the nature of
compensation, to which Section 280G(b)(2) of the Code
applies, does not exceed 299% of the Recipient's Average
Annual Compensation.
(c) The shares of Restricted Stock shall not be sold,
exchanged, transferred, pledged or otherwise disposed of by the
Employee during the Restricted Period other than to the
Corporation pursuant to subsections (b) and (d) of this Section,
by Will or by the laws of descent or distribution, or except that
the Recipient may, with the Corporation's consent, request that
shares be registered in the name of a Nominee ("Nominee").
Permissible forms of Nominee registration may include, but are
not necessarily limited to, registration of shares in the name of
the Recipient and the Recipient's spouse as joint tenants with
right of survivorship, or in the name of a revocable grantor
trust established by the employee, or other acceptable form of
ownership in which the shares are considered to be beneficially
owned by the employee for Federal income tax purposes and for
purposes of the Federal securities laws as they may be amended
from time to time and as to which the employee has or shares the
right to vote or direct the disposition of the shares. As a
condition to the consent to registration of the shares in nominee
name, the Agreement shall be executed by all persons or entities
to whom an interest in the shares is transferred for the purpose
of agreeing to the terms and conditions and restrictions under
which the shares are issued under this plan and the Agreement.
(d) If any assignment, pledge, transfer or other
disposition, voluntary or involuntary, of the Restricted Stock
shall be made during the Restricted Period, except as provided
above in subsections (b) and (c) of this Section, the Recipient's
right to the Restricted Stock shall immediately cease and
terminate and the Recipient shall promptly surrender to the
Corporation all such Restricted Stock.
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(e) During the Restricted Period, the Recipient shall have
all rights of a shareholder with respect to the Restricted Stock
including (i) the right to vote any shares at shareholders'
meetings, (ii) the right to receive, without restriction, all
cash dividends paid with respect to such Restricted Stock, and
(iii) the right to participate with respect to such Restricted
Stock in any stock dividend, stock split, recapitalization, or
other adjustment in the Capital Stock of the Corporation or any
merger, consolidation or other reorganization involving an
increase or decrease or adjustment in the Capital Stock of the
Corporation. Any new, additional or different shares or other
security received by the Recipient pursuant to any such stock
dividend, stock split, recapitalization or reorganization shall
be subject to the same terms, conditions and restrictions as
those relating to the Restricted Stock for which such shares were
received.
(f) The Recipient shall represent and warrant that the
Recipient is acquiring the Restricted Stock for the Recipient's
own account and investment and without any intention to resell or
distribute the Restricted Stock. The Recipient shall agree not
to resell or distribute such Restricted Stock after the
Restricted Period except upon such conditions as the Corporation
may reasonably specify to insure compliance with federal and
state securities laws.
(g) The Corporation or a subsidiary may make such
provisions as it shall deem appropriate for the withholding of
any taxes determined to be required to be withheld in connection
with the award or vesting of Restricted Stock. Each Recipient
shall authorize the Corporation or a subsidiary to withhold in
accordance with applicable law from any regular cash compensation
payable to him any taxes required to be withheld under federal,
state or local law as a result of the award or vesting of
Restricted Stock under the Plan. In lieu of such withholding
from cash compensation, the Corporation may, in the discretion of
the Committee, accept delivery to the Corporation of shares of
Capital Stock valued as of the time of the event giving rise to
the withholding obligation and in the same manner as the shares
are valued for the purpose of determining the amount of the
withholding obligation.
SECTION 6
EFFECTIVE DATE OF THE PLAN
This Plan shall be effective when it has been approved by a
majority of the Board.
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SECTION 7
AMENDMENT OF PLAN
The Board may amend the Plan at any time.
SECTION 8
TERM OF PLAN
The Board may terminate the Plan at any time; provided, however,
that such termination shall not affect any awarded Restricted Stock then
outstanding under the Plan.
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