<PAGE>
As filed with the Securities and Exchange Commission on August 14, 1998
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Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OLD KENT FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
MICHIGAN 38-1986608
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
111 LYON STREET NW
GRAND RAPIDS, MICHIGAN 49503
(616) 771-5000
(Name and address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
ALBERT T. POTAS
SENIOR VICE PRESIDENT AND CONTROLLER
OLD KENT FINANCIAL CORPORATION
111 LYON STREET NW
GRAND RAPIDS, MICHIGAN 49503
(616) 771-1931
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
WITH A COPY TO:
GORDON R. LEWIS
WARNER NORCROSS & JUDD LLP
111 LYON STREET NW, SUITE 900
GRAND RAPIDS, MICHIGAN 49503
(616) 752-2752
<PAGE>
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement, as
determined in light of market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933 ("Securities Act"), other than securities offered
only in connection with dividend or interest reinvestment plans, check the
following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
_________________________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] _________________________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH AMOUNT TO PROPOSED PROPOSED MAXIMUM AMOUNT OF
CLASS OF SECURITIES BE MAXIMUM AGGREGATE OFFERING REGISTRATION FEE
TO BE REGISTERED REGISTERED OFFERING PRICE PRICE<F1>
PER SHARE<F1>
<S> <C> <C> <C> <C>
Common Stock, (par value
$1.00 per share<F7>,
Preferred Stock (no par
value per share),
Depositary Shares, Debt
Securities and Warrants <F1><F2><F3><F4> <F1><F4> $250,000,000<F4><F5> $73,750<F4><F6>
<FN>
<F1>There are being registered under this Registration Statement such
indeterminate number of shares of Common Stock and Preferred Stock of
the Registrant, such indeterminate principal amount of Debt
Securities, and such indeterminate number of Depositary Shares and
Warrants to purchase Preferred Stock, Common Stock or Debt Securities
<PAGE>
of the Registrant as shall have an aggregate initial offering price
not to exceed $250,000,000. If any Debt Securities are issued at an
original issue discount, then the securities registered shall include
such additional Debt Securities as may be necessary such that the
aggregate initial public offering price of all securities issued
pursuant to this Registration Statement will equal $250,000,000. Any
securities registered under this Registration Statement may be sold
separately or as units with other securities registered under this
Registration Statement. The proposed maximum initial offering price
per unit will be determined, from time to time, by the Registrant in
connection with the issuance by the Registrant of the securities
registered under this Registration Statement.
<F2>There are also being registered under this Registration Statement such
indeterminate number of shares of Common Stock of the Registrant as
shall be issuable upon conversion of convertible Debt Securities or of
shares of convertible Preferred Stock registered hereby.
<F3>If the Registrant elects to offer to the public fractional interests
in shares of the Preferred Stock registered under this Registration
Statement, Depositary Receipts will be distributed to those persons
purchasing such fractional interests, and the shares of Preferred
Stock will be issued to the Depositary under the Deposit Agreement.
<F4>Not specified with respect to each class of securities to be
registered pursuant to General Instruction II.D. of Form S-3 under the
Securities Act.
<F5>Estimated solely for the purpose of calculating the registration fee.
<F6>Calculated pursuant to Rule 457(o) of the rules and regulations under
the Securities Act.
<F7>Includes the Series C Preferred Stock Purchase Rights (the "Rights")
attached to each share of Common Stock. Until the occurrence of
certain prescribed events, the Rights are not exercisable, are
evidenced by the certificates representing the Registrant's Common
Stock, and may be transferred only with such shares of the
Registrant's Common Stock.
</FN>
</TABLE>
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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The information is this Prospectus is not complete and may be changed. Old
Kent may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This Prospectus is not
an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED AUGUST 14, 1998
PROSPECTUS
$250,000,000
[OLD KENT LOGO]
OLD KENT FINANCIAL CORPORATION
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
WARRANTS
__________________________
Old Kent Financial Corporation may offer from time to time (i)
one or more series of unsecured debt securities, consisting of either
unsubordinated or subordinated debentures, notes and/or other
unsecured evidences of indebtedness, (ii) common stock, (iii) one or
more series of preferred stock, (iv) interests in preferred stock
represented by depositary shares, and (v) warrants to purchase debt
securities, common stock, preferred stock, or depositary shares.
The aggregate initial offering price of these securities will not
exceed $250,000,000. Old Kent may offer these securities either
separately or together, in separate series, all at prices and on terms
to be determined at the time of sale. The prices and terms of sale
will be set forth in one or more Prospectus Supplements.
Old Kent common stock is listed on The Nasdaq Stock Market under
the symbol OKEN. The applicable Prospectus Supplement will contain
information, where applicable, as to any other listing (if any) on The
Nasdaq Stock Market or any securities exchange of the securities
covered by the Prospectus Supplement.
This Prospectus may not be used to offer or sell any securities
unless accompanied by a Prospectus Supplement.
<PAGE>
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES REGULATOR HAS APPROVED OR DISAPPROVED OF THESE SECURITIES
OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE NOT SAVINGS ACCOUNTS, DEPOSITS, OR OTHER
OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY OF OLD KENT AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
The date of this Prospectus is August 14, 1998.
<PAGE>
TABLE OF CONTENTS
Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Old Kent Financial Corporation . . . . . . . . . . . . . . . . . . . 5
Supervision, Regulation and Other Matters. . . . . . . . . . . . . . 5
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Description of Old Kent's Capital Securities . . . . . . . . . . . . 7
Description of Common Stock . . . . . . . . . . . . . . . . . . . .10
Description of Preferred Stock . . . . . . . . . . . . . . . . . . .11
Description of Depositary Shares . . . . . . . . . . . . . . . . . .15
Description of Debt Securities . . . . . . . . . . . . . . . . . . .18
Description of Securities Warrants . . . . . . . . . . . . . . . . .27
Global Securities . . . . . . . . . . . . . . . . . . . . . . . . .29
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . .31
Validity of the Securities . . . . . . . . . . . . . . . . . . . . .33
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
Where to Find More Information . . . . . . . . . . . . . . . . . . .33
This Prospectus incorporates important business and financial
information about Old Kent that is not included in or otherwise
delivered with this Prospectus. You may obtain these documents by
requesting them in writing or by telephone from:
Old Kent Financial Corporation
Attn: Secretary
111 Lyon Street N.W.
Grand Rapids, Michigan 49503
Tel: (616) 771-5272
FOR A LIST OF INFORMATION INCORPORATED BY REFERENCE IN THIS
PROSPECTUS, SEE "WHERE TO FIND MORE INFORMATION" BELOW.
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SUMMARY
This summary highlights selected information from this Prospectus and
may not contain all of the information that is important to you. To best
understand this offering and for a more complete description of the legal
terms of the securities, you should read carefully this entire document and
the documents that are incorporated by reference in this document. In this
Prospectus and any Prospectus Supplement, "you" and "your" refers to each
prospective investor in the Securities.
OLD KENT FINANCIAL CORPORATION (SEE PAGE 5)
111 Lyon Street NW
Grand Rapids, Michigan 49503
(616) 771-5000
Old Kent is a bank holding company with headquarters in Grand Rapids,
Michigan. Old Kent conducts the business of commercial banking
through Old Kent Bank, its wholly owned principal banking subsidiary
with banking offices in Michigan and Illinois, and Old Kent Bank,
National Association.
Subsidiaries of Old Kent Bank include Old Kent Mortgage Company,
an originator of residential mortgages; Old Kent Insurance Group,
Inc., an insurance agency; Old Kent Brokerage Services, Inc., a
securities brokerage firm, and Lyon Street Asset Management Company, an
investment advisor.
SECURITIES OLD KENT MAY OFFER
Old Kent may offer up to $250,000,000 of any of, or any
combination of, the following securities, either separately or in
units: senior or subordinated debt, common stock, preferred stock,
depositary shares, and warrants (collectively, the "Securities").
A Prospectus Supplement will describe the specific amounts,
prices, and terms of each offering of these securities. The Prospectus
Supplement may also add, update, or change information contained in this
Prospectus. It is important that you read both this Prospectus and
each applicable Prospectus Supplement.
DEBT SECURITIES (SEE PAGE 18)
Old Kent may offer unsecured debt obligations of Old Kent in the form
of either senior or subordinated debt securities ("Debt Securities").
Unsubordinated Debt Securities, referred to as "Senior Debt
Securities," include notes, debt, and guarantees, that are not
subordinated. Debt Securities that are subordinate to Senior Debt and
other more senior obligations of Old Kent (the "Subordinated Debt
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Securities"), as designated at the time they are issued, would be
entitled to interest and principal payments after the payment of Senior
Debt Securities.
The Senior and Subordinated Debt Securities would be issued under
separate indentures between Old Kent and a trustee, a banking
institution. The following summarizes the general features of
the debt from the indentures. You should read the indentures (forms of
which are exhibits to the registration statement of which this
Prospectus is a part).
GENERAL INDENTURE PROVISIONS THAT APPLY TO SENIOR AND SUBORDINATED
DEBT
The following list highlights certain features common to both the
Senior Indenture and the Subordinated Indenture. For a more
complete description, see "DESCRIPTION OF DEBT SECURITIES"
beginning on page 18, as well as the indentures themselves.
- Neither indenture limits the amount of debt that Old Kent may
issue or provides the holder any protection should there be a highly
leveraged transaction involving Old Kent.
- Each indenture allows Old Kent to merge or to consolidate with
another company, or sell all or substantially all of its assets to
another company. If any of these events occur, the acquiring company
will be required to assume Old Kent's responsibilities on the Debt,
and Old Kent will be released from all liabilities and obligations.
- The indentures provide that holders of a majority of the total
principal amount of the debt outstanding in any series may vote
to change Old Kent's obligations or your rights concerning the Debt, but
to change the payment of principal or interest, each holder in that
series must consent.
- Old Kent may discharge the indentures at any time by depositing
sufficient funds with the Trustee to pay the obligations when due. All
amounts due to you on the Debt would be paid by the Trustee from the
deposited funds.
EVENTS OF DEFAULT--SENIOR DEBT
The following summarizes the Events of Default under the Senior
Indenture with respect to Senior Debt Securities of any series issued
thereunder:
- The failure to pay any interest on any Senior Debt Security of that
series when due, and continuance of such default for 30 days;
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- The failure to pay principal of or premium, if any, on any Senior
Debt Security of that series when due;
- The failure to deposit any sinking fund payment (if any), when
due, in respect of any Senior Debt Security of that series;
- The acceleration of indebtedness in principal amount in
excess of $125,000,000 for money borrowed by Old Kent or any
"Principal Constituent Bank;" and
- Certain events in bankruptcy, insolvency or reorganization of Old
Kent or any Principal Constituent Bank.
As of the date of this Prospectus, Old Kent Bank is the only subsidiary
of Old Kent that meets the definition of "Principal Constituent
Bank."
EVENTS OF DEFAULT--SUBORDINATED DEBT; LIMITED ACCELERATION
In the Subordinated Indenture, an Event of Default is defined as
certain events in bankruptcy, insolvency or reorganization of Old
Kent or any Principal Constituent Bank. As such, unless otherwise
specified in the Prospectus Supplement relating to any series of
Subordinated Securities, payment of principal of the Subordinated
Securities may be accelerated only in case of the bankruptcy,
insolvency or reorganization of Old Kent. There is no right of
acceleration in the case of a default in the payment of principal
of, premium, if any, or interest on the Subordinated Debt Securities or
the performance of any other covenant of Old Kent in the
Subordinated Indenture.
REMEDY
Upon the occurrence of an Event of Default, the Trustee or holders of
25% of the principal amount outstanding of a series may declare
principal immediately payable. However, a majority in principal may
rescind this action.
COMMON STOCK (SEE PAGE 10)
Old Kent may issue Common Stock. Shareholders of Old Kent common
stock are entitled to receive dividends declared by the Board of
Directors (subject to rights of Preferred Stock holders). Each
shareholder of common stock is also entitled to one vote per share. Old
Kent common stock has no preemptive or cumulative voting rights
associated with it.
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PREFERRED STOCK (SEE PAGE 11)
Old Kent may issue preferred stock in one or more series and will
determine the dividend, voting, and conversion rights, and other
provisions at the time of sale. Old Kent may also issue fractional
shares of its preferred stock ("Depositary Shares").
WARRANTS (SEE PAGE 26)
Old Kent may issue warrants for the purchase of Debt Securities,
preferred stock, or common stock ("Securities Warrants"). Old Kent
may issue the Securities Warrants independently or together with debt
securities, preferred stock, or common stock.
GLOBAL SECURITIES (SEE PAGE 28)
Unless otherwise specified in the applicable Prospectus Supplement,
the Securities will be represented by "Global Securities" registered in
the name of the nominee of The Depository Trust Company ("DTC").
Interests in the Global Securities will be shown on, and transfers
thereof will be effected only through, records maintained by DTC
and its direct and indirect participants.
PLAN OF DISTRIBUTION (SEE PAGE 30)
Old Kent may sell the Securities to or through underwriting syndicates
represented by managing underwriters, or to or through
underwriters without a syndicate, through agents or dealers, or
directly to other purchasers. The Prospectus Supplement will set forth
the initial public offering price, the names of any underwriters or
agents, the numbers or principal amounts, if any, to be purchased by
underwriters, the compensation of such underwriters and agents, if
any, and the net proceeds to Old Kent.
RATIO OF EARNINGS TO FIXED CHARGES (SEE CURRENT PROSPECTUS SUPPLEMENT)
A Ratio of Earnings to Fixed Charges table showing Old Kent's ratio of
earnings to fixed charges is presented, where appropriate, in the
applicable Prospectus Supplement.
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<PAGE>
OLD KENT FINANCIAL CORPORATION
Old Kent and its banking and non-banking subsidiaries offer a
wide range of banking, fiduciary, and other financial services,
including commercial, mortgage, and retail loans, business and
personal checking accounts, savings and retirement accounts, time
deposit instruments, automated teller machines, debit cards and other
electronically accessed banking services, money transfer services,
safe deposit facilities, cash management, real estate and lease
financing, international banking services, investment management and
trust services, personal investment and related advisory services,
brokerage services, and access to insurance products and credit cards.
Old Kent's principal markets for financial services presently are the
Michigan and Northeastern Illinois communities in which Old Kent Bank
is located and the areas immediately surrounding those communities.
Old Kent and its subsidiaries are extensively regulated under
both federal and state laws and regulations. Activities in which Old
Kent and its subsidiaries, including Old Kent Bank, are presently
engaged, or that they may undertake in the future, are subject to
certain statutory and regulatory restrictions. See "SUPERVISION,
REGULATION AND OTHER MATTERS" below.
Old Kent continually evaluates business combination and
acquisition opportunities and sometimes conducts due diligence
activities in connection with them. As a result, business combination
and acquisition discussions and negotiations may take place and
acquisition transactions involving cash, debt or equity securities may
be expected. Any future business combination or series of business
combinations that Old Kent might undertake may be material, in terms
of assets acquired or liabilities assumed, to Old Kent's financial
condition. Recent business combinations in the banking industry have
typically involved the payment of a premium over book and market
values. This practice may result in dilution of book value and net
income per share for the acquirers.
SUPERVISION, REGULATION AND OTHER MATTERS
As a bank holding company, Old Kent is subject to the regulation
and supervision of the Board of Governors of the Federal Reserve
System (the "Federal Reserve Board") under the Bank Holding Company
Act of 1956, as amended (the "BHCA"), and to the BHCA's examination
and reporting requirements. Similarly, Old Kent Bank is subject to
regulation and supervision by applicable federal and state banking
agencies, primarily the Federal Reserve Board, the Federal Deposit
Insurance Corporation (the "FDIC") and the Financial Institutions
Bureau of the State of Michigan. For a discussion of certain of the
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material elements of the regulatory framework applicable to bank
holding companies and their subsidiaries and certain specific
information relevant to Old Kent and its subsidiaries, reference is
made to Old Kent's Annual Report on Form 10-K, which is incorporated
by reference into this Prospectus. This regulatory framework is
intended primarily for the protection of depositors and the federal
deposit insurance funds and not for the protection of holders of Old
Kent's securities.
Old Kent's earnings are also affected by general economic
conditions, management policies and the legislative and governmental
actions of various regulatory authorities, including the Federal
Reserve Board, the FDIC and the Financial Institutions Bureau of the
State of Michigan. In addition, there are numerous governmental
requirements and regulations that affect Old Kent's activities. A
change in applicable statutes, regulations or regulatory policy may
have a material effect on Old Kent's business.
DISTRIBUTIONS
Old Kent's funds for cash distributions to its shareholders are
derived from a variety of sources, including cash and temporary
investments. The primary source of such funds, however, is dividends
received from Old Kent Bank. Old Kent Bank is subject to various
general regulatory policies and requirements relating to the payment
of dividends, including requirements to maintain capital above
regulatory minimums. The appropriate federal regulatory authority is
authorized to determine under certain circumstances relating to the
financial condition of the bank or bank holding company that the
payment of dividends would be an unsafe or unsound practice and to
prohibit payment of dividends.
In addition to the foregoing, the ability of Old Kent and Old
Kent Bank to pay dividends may be affected by the various minimum
capital requirements and the capital and non-capital standards. The
right of Old Kent, its shareholders and its creditors to participate
in any distribution of the assets or earnings of its subsidiaries is
further subject to the prior claims of creditors of the respective
subsidiaries.
SEPARATE LEGAL ENTITY
Old Kent is a legal entity separate and distinct from its
subsidiaries. There are various legal limitations governing the
extent to which Old Kent's banking subsidiaries may extend credit, pay
dividends or otherwise supply funds to, or engage in transactions
with, Old Kent or certain of its other subsidiaries. The rights of
Old Kent to participate in any distribution of assets of any
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subsidiary upon its dissolution, winding-up, liquidation or
reorganization or otherwise (and thus the ability of the holders of
Securities to benefit indirectly from such distribution) would be
subject to the prior claims of creditors of that subsidiary, except to
the extent that Old Kent may itself be a creditor of that subsidiary
and its claims are recognized. Claims against Old Kent's subsidiaries
by creditors other than Old Kent include substantial obligations with
respect to deposit liabilities and federal funds purchased, securities
sold under repurchase agreements, other short-term borrowing, and
various other financial obligations.
SOURCE OF STRENGTH
According to Federal Reserve Board policy, bank holding companies
are expected to act as a source of financial strength to each
subsidiary bank and to commit resources to support each such
subsidiary.
USE OF PROCEEDS
Old Kent intends to use the net proceeds from the sale of any
Securities for general corporate purposes, which may include Old
Kent's working capital needs, funding asset growth, reduction of
short-term indebtedness, repurchasing its Common Stock and other
equity securities, investing (at the holding company level) in, or
extending credit to, Old Kent's banking and other subsidiaries and
other banks and companies engaged in other financial service
activities, acquiring companies, and such other purposes as may be
stated in the applicable Prospectus Supplement. Pending such use, the
net proceeds may be temporarily invested. The precise amounts and
timing of the application of proceeds will depend upon the funding
requirements of Old Kent and its subsidiaries at the time of issuance
and the availability of other funds. Except as may be described in
the applicable Prospectus Supplement, specific allocations of the
proceeds to such purposes will not have been made at the date of such
Prospectus Supplement.
Based upon the financial needs of Old Kent and its subsidiaries,
Old Kent also may engage in other financings of a character and amount
to be determined as the need arises.
DESCRIPTION OF OLD KENT'S CAPITAL SECURITIES
The following summary of certain provisions of Old Kent's
Restated Articles of Incorporation, as amended (the "Articles of
Incorporation"), and Old Kent's preferred stock purchase rights plan
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does not purport to be complete and is qualified in its entirety by
reference to such instruments, each of which is an exhibit to the
Registration Statement of which this Prospectus is a part.
AUTHORIZED CAPITAL STOCK
The authorized capital stock of Old Kent currently consists of
300,000,000 shares of common stock, par value $1.00 per share ("Common
Stock"), and 25,000,000 shares of preferred stock, without par value
("Preferred Stock"). At June 30, 1998, Old Kent had approximately
94.157 million shares of Common Stock issued and outstanding.
At June 30, 1998, there were 25,000,000 shares of Preferred Stock
authorized but unissued. At June 30, 1998, 3,000,000 of these shares
were designated Series A Preferred Stock, 500,000 shares were
designated Series B Preferred Stock, and 1,000,000 shares were
designated Series C Preferred Stock.
The Common Stock and Preferred Stock are more fully described
under "DESCRIPTION OF COMMON STOCK" and "DESCRIPTION OF PREFERRED
STOCK" below.
PROVISIONS AFFECTING CONTROL OF OLD KENT
Old Kent's Articles of Incorporation and Bylaws contain certain
provisions that could prevent or delay the acquisition of Old Kent by
means of a tender offer, a proxy contest, or otherwise. These
provisions could also limit shareholders' participation in certain
types of business combinations or other transactions that might be
proposed in the future, regardless whether such transactions were
favored by a majority of shareholders, and could enhance the ability
of officers and directors to retain their positions.
CLASSIFICATION OF THE BOARD OF DIRECTORS
Old Kent's Board of Directors is divided into three classes, as
nearly equal in number as possible, with the term of office of one
class expiring each year. The number of directors is fixed by a
resolution of the Board of Directors receiving at least 75% approval
of the entire board, but in no event may the number of directors be
less than three. As a result of the classification of Old Kent's
Board of Directors, it would normally take at least two annual
meetings of shareholders to effect a change in a majority of the Board
of Directors of Old Kent.
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REMOVAL OF DIRECTORS
A director may be removed from office at any time prior to the
expiration of his or her term, but only for "cause." Except as may be
provided otherwise by law, cause for removal shall exist if: (a) the
director whose removal is proposed has been convicted of a felony by a
court of competent jurisdiction and such conviction is no longer
subject to direct appeal; (b) the director has been adjudicated by a
court of competent jurisdiction to be liable for negligence or
misconduct in the performance of his or her duty to the corporation in
a matter of substantial importance to the corporation and such
adjudication is no longer subject to a direct appeal; (c) the director
has become mentally incompetent, whether or not so adjudicated, which
mental incompetency directly affects his or her ability as a director
of the corporation; (d) the director's actions or failure to act are
deemed by the Board of Directors to be in derogation of the director's
duties; or (e) the director's removal is required or recommended by
the Federal Reserve Board. Removal for cause, as cause is defined in
(a) or (b) above, must be approved by vote of a majority of the total
number of directors or by majority vote of shareholders. Removal for
cause, as cause is defined in (c), (d), or (e) above, must be approved
by at least 75% of the total number of directors.
SHAREHOLDER NOMINATIONS
A shareholder may nominate an individual for director at any
annual meeting of shareholders or at any special meeting of
shareholders called for election of directors (referred to as an
"Election Meeting") may be made by the Board of Directors or by a
shareholder under certain limited circumstances described below.
Nominations made by the Board of Directors are made at a meeting of
the Board of Directors, or by written consent of directors in lieu of
a meeting, not less than 20 days prior to the date of an Election
Meeting.
A shareholder may make a nomination at an Election Meeting if,
and only if, such shareholder has delivered a notice to the Secretary
of Old Kent setting forth with respect to each proposed nominee: (a)
the name, age, business address, and residence address of the nominee;
(b) the principal occupation or employment of the nominee; (c) the
number of shares of capital stock of the corporation that are
beneficially owned by the nominee; (d) a statement that the nominee is
willing to be nominated; and (e) such other information concerning the
nominee as would be required under the rules of the SEC in a proxy
statement soliciting proxies for the election of such nominee. The
notice must be delivered not less than 120 days prior to the date of
the Election Meeting in the case of an annual meeting and not more
than 7 days following the date of notice of the Election Meeting in
the case of a special meeting.
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SHAREHOLDER RIGHTS PLAN
The Board of Directors of Old Kent has adopted a shareholder
rights plan. This plan is intended to protect the shareholders of Old
Kent against unsolicited attempts to acquire control of Old Kent in a
manner that does not offer a fair price to all of the shareholders.
Each full Old Kent Right, when exercisable, entitles a
shareholder of Old Kent to purchase one one-hundredth of a share of
Series C Preferred Stock from Old Kent at a price of $160. The Old
Kent Rights become exercisable if (a) a person or group (an "Acquiring
Person") has acquired, or has obtained the right to acquire, 15% or
more of the outstanding shares of Old Kent Common Stock, (b) an
Acquiring Person commenced a tender offer or exchange offer that would
result in the Acquiring Person owning 15% or more of the outstanding
shares of Old Kent Common Stock, or (c) a person or group already
owning 10% of the outstanding shares of Old Kent Common Stock is
determined by Old Kent's Board of Directors to be an "Adverse Person"
(as defined in the Old Kent Rights Agreement, which Agreement is
included as an exhibit to the Registration Statement of which this
Prospectus is a part).
If, after the Old Kent Rights become exercisable, (a) Old Kent
was the surviving corporation in a merger with an Acquiring Person and
Old Kent Common Stock was not changed or exchanged, (b) an Acquiring
Person was to engage in one or more "self-dealing" transactions deemed
to be unfair to Old Kent by the Old Kent Board of Directors, (c) an
Acquiring Person was to become the beneficial owner of more than 15%
of the then outstanding shares of Old Kent Common Stock, or (d) a
person had been or was designated as an Adverse Person by Old Kent's
Board of Directors in accordance with the Old Kent Rights Agreement;
then each holder of an Old Kent Right would have the right to receive,
upon exercise, Old Kent Common Stock having a value equal to two times
the exercise price of the Old Kent Right.
In addition, after an Acquiring Person has acquired, or obtained
the right to acquire, 15% or more of the outstanding shares of Old
Kent Common Stock and the Acquiring Person causes Old Kent to merge
into the Acquiring Person or causes 50% or more of Old Kent's assets
to be sold or transferred, each holder of an Old Kent Right would have
the right to receive, upon exercise, common stock of the Acquiring
Person having a value equal to two times the exercise price of the Old
Kent Right.
Old Kent is entitled to redeem the Old Kent Rights at $0.01 per
Old Kent Right at any time until 10 days following the public
announcement that an Acquiring Person has acquired, or has obtained
the right to acquire, 15% or more of the outstanding shares of Old
Kent Common Stock.
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APPRAISAL/DISSENTERS' RIGHTS
Old Kent's Articles of Incorporation provide that any Old Kent
shareholder may dissent from any plan of merger or consolidation to
which Old Kent is a party or any sale, lease, exchange, or other
disposition of all or substantially all of the assets of Old Kent not
in the usual or regular course of business, in the manner, with the
rights and subject to the requirements applicable to dissenting
shareholders as provided in the Michigan Business Corporation Act (the
"MBCA"), without regard to the exception to a shareholder's right to
dissent provided in the MBCA. However, this right of dissent does not
apply to any corporate action that is approved by an affirmative vote
of at least 50% of the entire Board of Directors and an affirmative
vote of 50% of the board's "Continuing Directors." The term
"Continuing Director" means a member of the Board of Directors of Old
Kent who was either: (a) first elected or appointed as a director
prior to April 17, 1989; or (b) subsequently elected or appointed as a
director if such director was nominated or appointed by a majority of
the then Continuing Directors.
EVALUATION OF PROPOSED OFFERS
Old Kent's Articles of Incorporation provide that Old Kent's
Board of Directors will not approve, adopt, or recommend any proposal
of any party other than Old Kent to make a tender or exchange offer
for any equity security of Old Kent, or engage in any merger or
consolidation of Old Kent with or into another entity, any sale,
exchange, lease, mortgage, pledge, transfer, or other disposition of
all or substantially all of Old Kent's assets, any liquidation or
dissolution of Old Kent or any reorganization or recapitalization of
Old Kent that would result in a change of control of Old Kent, unless
it has first evaluated the proposal and determined, in its judgment,
that the proposal would be in substantial compliance with all
applicable laws. If Old Kent's Board of Directors determines, in its
judgment, that a proposal would be in substantial compliance with all
laws, the Board of Directors will then evaluate the proposal and
determine whether the proposal is in the best interests of Old Kent
and its shareholders. In evaluating a proposed offer to determine
whether it would be in the best interests of Old Kent and its
shareholders, the Board of Directors, in exercising its judgment, may
consider all facts that it deems relevant including, without
limitation: (a) the fairness of the consideration to be received by
Old Kent's shareholders under the proposed offer; (b) the possible
economic and social impact of the proposed offer and its consummation
on Old Kent and its subsidiaries and their employees, customers, and
depositors; (c) the possible economic and social impact of the
proposed offer and its consummation on the communities in which Old
Kent and its subsidiaries operate or are located; (d) the business,
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financial condition, safety, soundness, and earning prospects of the
offering party; (e) the competence, experience, and integrity of the
offering party and its management; and (f) the intentions of the
offering party regarding the use of the assets of Old Kent to finance
the transaction.
DESCRIPTION OF COMMON STOCK
The following summary of the Common Stock is qualified in its
entirety by reference to the description of the Common Stock
incorporated by reference in this Prospectus.
GENERAL
Old Kent is authorized to issue 300,000,000 shares of its Common
Stock. The Common Stock is quoted on The Nasdaq Stock Market under
the symbol OKEN. Old Kent Bank acts as transfer agent and registrar
for the Common Stock.
Associated with each share of Old Kent Common Stock is a fraction
of an Old Kent Series C Preferred Stock Purchase Right (a "Right").
Each Right represents a right to purchase 1/100 of a share of Old
Kent's Series C Preferred Stock. However, until the occurrence of
certain events generally involving a change of control of Old Kent,
the Rights are not exercisable, are evidenced by the certificates
representing the Old Kent Common Stock, and may be transferred only
with such shares of Old Kent Common Stock. In this Prospectus, the
term "Old Kent Common Stock" includes both Old Kent's common stock and
these Rights.
VOTING AND OTHER RIGHTS
The holders of the Common Stock are entitled to one vote per
share, and, in general, a majority of votes cast with respect to a
matter is sufficient to take action upon routine matters. Directors
are elected by a plurality of the votes cast, and each shareholder
entitled to vote in such election shall be entitled to vote each share
of stock for as many persons as there are directors to be elected. In
elections for directors, such shareholders do not have the right to
cumulate their votes.
In general, (i) amendments to Old Kent's Articles of
Incorporation must be approved by a majority of the votes cast by Old
Kent's shareholders, unless the amendment creates dissenters' rights,
in which case such amendment must be approved by a majority of the
votes entitled to be cast by Old Kent's shareholders; (ii) a merger or
share exchange required to be approved by shareholders must be
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approved by each voting group entitled to vote separately thereon by a
majority of the votes entitled to be cast by that voting group; and
(iii) the dissolution of Old Kent, or the sale of all or substantially
all of the property of Old Kent other than in the usual and regular
course of business, must be approved by a majority of all votes
entitled to be cast thereon. In addition, Old Kent's Articles of
Incorporation require a supermajority vote of shareholders to approve
certain corporate transactions, including the amendment of certain
provisions of the Articles of Incorporation, such as the election and
removal of directors and the creation of additional dissenters'
rights.
In the event of liquidation of Old Kent, holders of the Common
Stock would be entitled to receive pro rata any assets legally
available for distribution to shareholders with respect to shares held
by them, subject to any prior rights of any preferred stock then
outstanding. See "DESCRIPTION OF PREFERRED STOCK."
The Common Stock does not have any preemptive rights, redemption
privileges, sinking fund privileges or conversion rights. All the
outstanding shares of the Common Stock are validly issued, fully paid
and nonassessable.
DISTRIBUTIONS
The holders of the Common Stock are entitled to receive such
dividends or distributions as the Board of Directors of Old Kent may
declare out of funds legally available for such payments. The payment
of distributions by Old Kent is subject to the restrictions of
Michigan law applicable to the declaration of distributions by a
business corporation. A corporation generally may not authorize and
make distributions if, after giving effect thereto, it would be unable
to meet its debts as they become due in the usual course of business
or if Old Kent's total assets would be less than the sum of its total
liabilities plus the amount that would be needed, if it were to be
dissolved at the time of distribution, to satisfy claims upon
dissolution of shareholders who have preferential rights superior to
the rights of the holders of its Common Stock. In addition, the
payment of distributions to shareholders is subject to any prior
rights of any outstanding preferred stock. See "DESCRIPTION OF
PREFERRED STOCK." Share dividends, if any are declared, may be paid
from Old Kent's authorized but unissued shares.
The ability of Old Kent to pay dividends may be affected by the
ability of Old Kent Bank to pay dividends. The ability of Old Kent
Bank, as well as of Old Kent, to pay dividends in the future currently
is, and could be further, influenced by bank regulatory requirements
and capital guidelines.
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DESCRIPTION OF PREFERRED STOCK
The following summary description of Old Kent's authorized
Preferred Stock does not purport to be complete and is qualified in
its entirety by reference to the Articles of Incorporation and, with
respect to each series of Preferred Stock, the certificate of
designations relating to such series (each, a "Certificate of
Designations"), that will be incorporated by reference in the
Registration Statement of which this Prospectus is a part at or prior
to the time of issuance of shares of such series. As of the date of
this Prospectus, Old Kent has no preferred stock outstanding.
Furthermore, the following summary description of the Preferred
Stock relates to certain terms and conditions applicable to the
Preferred Stock as a class. The particular terms of any series of
Preferred Stock will be described in the applicable Prospectus
Supplement. If so indicated in such Prospectus Supplement, the terms
of any such series may differ from the terms set forth below.
GENERAL
Under the Articles of Incorporation, the Preferred Stock may be
issued from time to time in one or more series, without shareholder
approval, when authorized by the Board of Directors of Old Kent.
Subject to limitations prescribed by law, the Board of Directors is
authorized to determine the voting powers, if any, designation,
preferences and relative, participating, optional or other rights, if
any, and the qualifications, limitations or restrictions thereof, if
any, including specifically, but not limited to, the dividend rights,
conversion rights, redemption rights and liquidation preferences, if
any, of any then unissued series of Preferred Stock (or the entire
class of Preferred Stock, if none of such shares have been issued),
the number of shares constituting any such series and the terms and
conditions of the issuance thereof. Thus, the Board of Directors (or
a committee thereof), without shareholder approval, could authorize
the issuance of Preferred Stock with voting, conversion and other
rights that could adversely affect the voting power and other rights
of holders of Common Stock or other outstanding series of Preferred
Stock.
Each Series of Preferred Stock will have the dividend,
liquidation, redemption and voting rights described below unless
otherwise described in the applicable Prospectus Supplement. The
applicable Prospectus Supplement will describe the following terms of
the series of Preferred Stock in respect of which this Prospectus is
being delivered: (i) the title of such series of Preferred Stock and
the number of shares offered; (ii) the amount of the liquidation
preference per share (or the method of calculation of such amount);
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(iii) the initial public offering price at which such Preferred Stock
will be issued; (iv) the dividend rate (or the method of calculation
of such rate) applicable to such series, the dates on which dividends,
if any, will be payable, whether such dividends are cumulative or
non-cumulative, and the dates from which dividends will commence to
cumulate, if any; (v) any redemption or sinking fund provisions;
(vi) any conversion or exchange rights; (vii) any additional voting,
dividend, liquidation, redemption, sinking fund and other rights,
preferences, privileges, qualifications, limitations and restrictions;
(viii) any listing of such series of Preferred Stock on any securities
exchange or quotation system; (ix) the relative ranking and
preferences of such series of Preferred Stock as to dividend rights
and rights upon any liquidation, dissolution or winding up of the
affairs of Old Kent; and (x) any other material terms of such series
of Preferred Stock.
No shares of Preferred Stock are currently outstanding. Shares
of Preferred Stock, upon issuance against full payment of the purchase
price therefor, will be fully paid and nonassessable. Neither the par
value nor the liquidation preference of any series of Preferred Stock
is indicative of the price at which shares of such series of Preferred
Stock will actually trade on or after the date of issuance.
RANK
Each series of Preferred Stock will, with respect to dividend
rights and rights upon liquidation, dissolution or winding up of Old
Kent, rank prior to Old Kent's Common Stock and to all other classes
and series of equity securities of Old Kent now or hereafter
authorized, issued or outstanding (the Common Stock and such other
classes and series of equity securities, collectively, being referred
to herein as "Junior Stock"), other than any classes or series of
equity securities of Old Kent that by their terms specifically provide
for a ranking on a parity with ("Parity Stock") or senior to ("Senior
Stock") such series of Preferred Stock. All series of Preferred Stock
will be junior to the Debt Securities and all other indebtedness of
Old Kent. Each series of Preferred Stock will be subject to the
creation of Senior Stock, Parity Stock and Junior Stock to the extent
not expressly prohibited by the Articles of Incorporation (including
the applicable Certificate of Designations). Unless otherwise
specified in the applicable Prospectus Supplement, each series of
Preferred Stock will rank on a parity with each other series of
Preferred Stock.
DIVIDENDS
Holders of each series of Preferred Stock will be entitled to
receive, when, as and if declared by the Board of Directors out of
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funds of Old Kent legally available for payment, cash dividends
payable at such date or dates and at such rate or rates per share as
described in the applicable Prospectus Supplement. Such rate or rates
may be fixed or variable. Each declared dividend will be payable to
holders of record as they appear at the close of business on the stock
books of Old Kent on such record dates as determined by the Board of
Directors (each of such dates, a "Record Date").
Such dividends may be cumulative or noncumulative, as described
in the applicable Prospectus Supplement. If dividends on a series of
Preferred Stock are noncumulative and if the Board of Directors fails
to declare a dividend in respect of a dividend period with respect to
such series, then holders of such Preferred Stock will have no right
to receive a dividend in respect of such dividend period, and Old Kent
will have no obligation to pay the dividend for such period, whether
or not dividends are declared with respect to any future dividend
payment dates. If dividends on a series of Preferred Stock are
cumulative, the dividends on such shares will accumulate from and
after the date set forth in the applicable Prospectus Supplement.
No dividends may be declared or paid or set apart for payment on
Preferred Stock of Old Kent of any series ranking, as to dividends, on
a parity with or junior to the series of Preferred Stock offered by
the applicable Prospectus Supplement for any period unless full
dividends for the immediately preceding dividend period on such series
of Preferred Stock (including any accumulation in respect of unpaid
dividends for prior dividend periods, if dividends on such Preferred
Stock are cumulative) have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof is set
apart for such payment. When dividends are not so paid in full (or a
sum sufficient for such full payment is not so set apart) upon such
series of Preferred Stock and any other series of preferred stock of
Old Kent ranking on a parity, as to dividend rights, with the
Preferred Stock of such series, dividends upon such series of
Preferred Stock and dividends on such other series of preferred stock
ranking on a parity with such series of Preferred Stock will be
declared pro rata so that the amount of dividends declared per share
on such series of Preferred Stock and such other series of preferred
stock ranking on a parity with such series of Preferred Stock will in
all cases bear to each other the same ratio that accrued dividends for
the then current dividend period per share on such series of Preferred
Stock (including any accumulation in respect of unpaid dividends for
prior dividend periods, if dividends on such series of Preferred Stock
are cumulative) and accumulated dividends, including required or
permitted accumulations, if any, on shares of such other series of
preferred stock, bear to each other. No interest, or sum of money in
lieu of interest, will be payable in respect of any dividend payment
on such series of Preferred Stock that may be in arrears. Unless full
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dividends on the series of Preferred Stock offered by the applicable
Prospectus Supplement have been declared and paid or set apart for
payment for the immediately preceding dividend period (including any
accumulation in respect of unpaid dividends for prior dividend
periods, if dividends on such series of Preferred Stock are
cumulative), (i) no cash dividend or distribution (other than in
shares of Junior Stock) may be declared, set aside or paid on Junior
Stock, (ii) Old Kent may not, directly or indirectly, repurchase,
redeem or otherwise acquire any shares of Junior Stock (or pay any
monies into a sinking fund for the redemption of any such shares)
except by conversion into or exchange for Junior Stock, and (iii) Old
Kent may not, directly or indirectly, repurchase, redeem or otherwise
acquire any series of Preferred Stock ranking on parity as to
dividends (or pay any monies into a sinking fund for the redemption of
any shares of any such stock) otherwise than pursuant to pro rata
offers to purchase or a concurrent redemption of all, or a pro rata
portion, of the outstanding Preferred Stock and any other series of
preferred stock of Old Kent ranking on parity as to dividends (except
by conversion into or exchange for Junior Stock). Any dividend
payment made on a series of Preferred Stock will first be credited
against the earliest accrued but unpaid dividend due with respect to
shares of such series that remains payable.
REDEMPTION
If Old Kent elects to redeem any or all of the Preferred Stock of
any series then outstanding, it must mail notice thereof to the
holders of record of the Preferred Stock of such series not less than
10 nor more than 60 days prior to the date fixed for redemption (the
"Redemption Date"). However, failure by Old Kent to mail such notice
to any holder of record of shares of such series of Preferred Stock or
any defect in such notice will not affect the validity of the
redemption procedure with respect to any other shares of such series.
The Preferred Stock of each series will be redeemed at a price (the
"Redemption Price") set forth in the Certificate of Designations for
such series of Preferred Stock. In the event of such redemption,
holders of Preferred Stock of such series will also receive a
distribution of all accrued dividends that remain unpaid as of the
Redemption Date.
LIQUIDATION
In the event of a voluntary or involuntary liquidation,
dissolution or winding up of the affairs of Old Kent, the holders of a
series of Preferred Stock will be entitled to receive in full out of
the assets of Old Kent available for distribution to shareholders
(including its capital) before any amount is paid to, or distributed
among, the holders of Common Stock, an amount fixed by the Articles of
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Incorporation of Old Kent or by the Board of Directors of Old Kent.
If the amount available for distribution upon liquidation, dissolution
or winding up of the affairs of Old Kent is not sufficient to satisfy
the full liquidation rights of all the outstanding Preferred Stock,
then the holders of each series of such stock will share ratably in
any such distribution of assets in proportion to the full respective
preferential amount (which may include accumulated dividends) to which
they are entitled. After payment of the full amount of the applicable
liquidation preference, the holders of Preferred Stock will have no
right or claim to any of the remaining assets of Old Kent.
VOTING
Each series of Preferred Stock will be entitled to one vote per
share. Under regulations adopted by the Federal Reserve Board, if the
holders of any series of Preferred Stock become entitled to vote for
the election of directors (for example, because dividends on such
series are in arrears), such series may then be deemed a "class of
voting securities," and a holder of 25% or more of such series (or a
holder of 5% or more if it otherwise exercises a "controlling
influence" over Old Kent) may then be subject to regulation as a bank
holding company in accordance with the BHCA. In addition, at such
time (i) any bank holding company may be required to obtain the
approval of the Federal Reserve Board under the BHCA, and any foreign
bank, or company that controls a foreign bank, that has certain types
of U.S. banking operations may be required to obtain the approval of
the Federal Reserve Board under the International Banking Act of 1978,
as amended, to acquire or retain 5% or more of such series of
Preferred Stock and (ii) any person other than a bank holding company
may be required to obtain the approval of the Federal Reserve Board
under the Change in Bank Control Act to acquire or retain 10% or more
of such series of Preferred Stock.
CONVERSION
The terms, if any, on which Preferred Stock of any series may be
converted into another class or series of securities of Old Kent will
be set forth in the applicable Prospectus Supplement.
NO OTHER RIGHTS
The shares of a series of Preferred Stock will not have any
preferences, voting powers or relative, participating, optional or
other special rights except as set forth above or in the applicable
Prospectus Supplement, the Articles of Incorporation (including the
applicable Certificate of Designations) or as otherwise required by
law. Except as set forth above and in the applicable Prospectus
Supplement, the holders of Preferred Stock will not have any
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conversion, redemption or preemptive rights to subscribe to any
securities of Old Kent.
TITLE
Old Kent, any transfer agent and registrar for any series of
Preferred Stock, and any agent of Old Kent or the applicable transfer
agent and registrar may treat the registered owner of any Preferred
Stock as the absolute owner thereof (whether or not any payment in
respect of such Preferred Stock is overdue and notwithstanding any
notice to the contrary) for the purpose of making payment and for all
other purposes. See "GLOBAL SECURITIES" below.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for each series of Preferred
Stock will be set forth in the applicable Prospectus Supplement.
DESCRIPTION OF DEPOSITARY SHARES
The following summary description of the Depositary Shares and
Depositary Receipts (as defined below) does not purport to be complete
and is qualified in its entirety by reference to the Deposit Agreement
(as defined below) and Depositary Receipts with respect to the
Depositary Shares representing any particular series of Preferred
Stock, the forms of which will be incorporated by reference into the
Registration Statement of which this Prospectus is a part at or prior
to the time of the issuance of such Depositary Shares.
Furthermore, the following summary description of the Depositary
Shares and Depositary Receipts relates to certain terms and conditions
applicable to such Securities generally. The particular terms of any
series of Depositary Shares will be described in the applicable
Prospectus Supplement. If so indicated in such Prospectus Supplement,
the terms of any such series may differ from the terms set forth
below.
GENERAL
Old Kent may, at its option, elect to offer fractional shares of
Preferred Stock, rather than full shares of Preferred Stock. In the
event such option is exercised, Old Kent will issue receipts for
Depositary Shares, each of which will represent a fraction (to be set
forth in the Prospectus Supplement relating to a particular series of
Preferred Stock) of a share of a particular series of Preferred Stock
as described below.
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The shares of any series of the Preferred Stock represented by
Depositary Shares will be deposited under a deposit agreement (the
"Deposit Agreement") between Old Kent and a bank or trust company
selected by Old Kent having its principal office in the United States
and having a combined capital and surplus of at least $50,000,000.
Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable
fraction of a share of Preferred Stock represented by such Depositary
Share, to all the rights and preferences of the Preferred Stock
represented thereby (including dividend, voting, redemption,
conversion and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts
issued pursuant to the Deposit Agreement. Depositary Receipts will be
distributed to those persons purchasing the fractional shares of
Preferred Stock in accordance with the terms of the offering. The
forms of Deposit Agreement and Depositary Receipt are filed as
exhibits to the Registration Statement, and the following summary is
qualified in its entirety by reference to such exhibits.
Pending the preparation of definitive Depositary Receipts, the
Depositary may, upon the written order of Old Kent, execute and
deliver temporary Depositary Receipts which are substantially
identical to, and entitle the holders thereof to all the rights
pertaining to, the definitive Depositary Receipts. Definitive
Depositary Receipts will be prepared thereafter without unreasonable
delay, and temporary Depositary Receipts will be exchangeable for
definitive Depositary Receipts at Old Kent's expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute cash dividends or other cash
distributions received in respect of the Preferred Stock to the record
holders of Depositary Shares relating to such Preferred Stock in
proportion to the numbers of such Depositary Shares owned by such
holders.
In the event of a distribution other than in cash, the Depositary
will distribute property received by it to the record holders of
Depositary Shares entitled thereto. If the Depositary determines that
it is not feasible to make such distribution, it may, with the
approval of Old Kent, adopt an equitable method of distribution,
including selling such property and distributing the net proceeds from
such sale to such holders.
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REDEMPTION OR EXCHANGE OF PREFERRED STOCK
If a series of Preferred Stock represented by Depositary Shares
is to be redeemed or exchanged, the Depositary Shares will be redeemed
from the proceeds received by the Depositary resulting from the
redemption, in whole or in part, of such series of Preferred Stock
held by the Depositary, or exchanged for other securities to be issued
in exchange for the Preferred Stock (as the case may be, in accordance
with the terms of such series of Preferred Stock). The Depositary
Shares will be redeemed or exchanged by the Depositary at a price per
Depositary Share equal to the applicable fraction of the redemption
price per share or market value of the securities per Depositary Share
paid in respect of the shares of Preferred Stock so redeemed or
exchanged. Whenever Old Kent redeems or exchanges shares of Preferred
Stock held by the Depositary, the Depositary will redeem or exchange
as of the same date the number of Depositary Shares representing
shares of Preferred Stock so redeemed or exchanged. If fewer than all
the Depositary Shares are to be redeemed or exchanged, the Depositary
Shares to be redeemed or exchanged will be selected by the Depositary
by lot or pro rata or by any other equitable method as may be
determined by Old Kent.
WITHDRAWAL OF PREFERRED STOCK
Any holder of Depositary Shares may, upon surrender of the
Depositary Receipts therefor to the Depositary, receive the number of
whole shares of the related series of Preferred Stock and any money or
other property represented by such Depositary Receipts. Holders of
Depositary Shares making such withdrawals will be entitled to receive
whole shares of Preferred Stock on the basis set forth in the related
Prospectus Supplement for such series of Preferred Stock, but holders
of such whole shares of Preferred Stock will not thereafter be
entitled to deposit such Preferred Stock under the Deposit Agreement
or to receive Depositary Receipts therefor. If the Depositary Shares
surrendered by the holder in connection with such withdrawal exceed
the number of Depositary Shares that represent the number of whole
shares of Preferred Stock to be withdrawn, the Depositary will deliver
to such holder at the same time a new Depositary Receipt evidencing
such excess number of Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders
of the Depositary Shares relating to such Preferred Stock. Each
record holder of such Depositary Shares on the record date (which will
be the same date as the record date of the Preferred Stock) will be
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entitled to instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of the Preferred Stock represented by
such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the amount of the Preferred Stock
represented by such Depositary Shares in accordance with such
instructions, and Old Kent will agree to take all reasonable actions
which may be deemed necessary by the Depositary in order to enable the
Depositary to do so. To the extent the Depositary does not receive
specific instructions from the holders of Depositary Shares relating
to such Preferred Stock, it will vote shares of Preferred Stock in
accordance with Old Kent's recommendation, unless otherwise indicated
in the applicable Prospectus Supplement.
CONVERSION RIGHTS
Unless otherwise indicated in the applicable Prospectus
Supplement, any holder of Depositary Shares, upon surrender of the
Depositary Receipts therefor and delivery of instructions to the
Depositary, may cause Old Kent to convert any specified number of
whole or fractional shares of Preferred Stock represented by the
Depositary Shares into the number of whole shares of other securities
(in accordance with the terms of such series of the Preferred Stock)
of Old Kent obtained by dividing the aggregate liquidation preference
of such Depositary Shares by the Conversion Price (as such term is
defined in the Certificate of Designations) then in effect, as such
Conversion Price may be adjusted by Old Kent from time to time as
provided in the Certificate of Designations. In the event that a
holder delivers Depositary Receipts to the Depositary for conversion
which in the aggregate are convertible either into less than one whole
share of such other securities or into any number of whole shares of
such other securities plus an excess constituting less than one whole
share of such other securities, the holder will receive payment in
lieu of such fractional shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares
and any provision of the Deposit Agreement may at any time be amended
by agreement between Old Kent and the Depositary. However, any
amendment which materially and adversely alters the rights of the
holders of Depositary Shares will not be effective unless such
amendment has been approved by the holders of at least a majority of
the Depositary Shares then outstanding. If so indicated in the
applicable Prospectus Supplement, the Deposit Agreement will
automatically terminate if (i) all outstanding Depositary Shares have
been redeemed; or (ii) each share of Preferred Stock has been
converted into Capital Securities or other preferred stock or has been
exchanged for Capital Securities or other debt securities; or (iii)
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there has been a final distribution in respect of the Preferred Stock
in connection with any liquidation, dissolution or winding up of Old
Kent and such distribution has been distributed to the holders of
Depositary Shares. The Deposit Agreement also may be terminated by
Old Kent at any time upon 60 days prior written notice to the
Depositary, in which case the Depositary will deliver to the record
holders, upon surrender of the Depositary Receipts, such number of
whole or fractional shares of Preferred Stock represented by such
Depositary Receipts.
CHARGES OF DEPOSITARY
Old Kent will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary
arrangements. Old Kent will pay all charges from the Depositary in
connection with the initial deposit of the Preferred Stock and the
initial issuance of the Depositary Shares, all withdrawals of shares
of Preferred Stock by owners of Depositary Shares, and any redemption
or exchange of the Preferred Stock. Holders of Depositary Shares will
pay other transfer and other taxes and governmental charges and such
other charges or expenses as are expressly provided in the Deposit
Agreement to be for their accounts.
DELIVERY OF REPORTS
The Depositary will forward all reports and communications from
Old Kent which are delivered to the Depositary and which Old Kent is
required to furnish to the holders of the Preferred Stock of the
applicable series.
OBLIGATIONS OF THE DEPOSITORY AND OLD KENT
Neither the Depository nor Old Kent will be liable if it is
prevented, delayed, or precluded by law or any circumstance beyond its
control from performing its obligations under the Deposit Agreement.
The obligations of Old Kent and the Depositary under the Deposit
Agreement will be limited to performance in good faith of their duties
thereunder and they will not be obligated to prosecute or defend any
legal proceeding in respect of any Depositary Shares of Preferred
Stock unless satisfactory indemnity is furnished. They may rely upon
written advice of counsel or accountants, upon information provided by
persons presenting Preferred Stock for deposit and holders of
Depositary Receipts or other persons believed to be competent, and
upon documents believed to be genuine.
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RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to Old Kent
notice of its election to do so, and Old Kent may at any time remove
the Depositary, any such resignation or removal to take effect upon
the appointment of a successor Depositary and its acceptance of such
appointment. Such successor Depositary must be appointed within 60
days after delivery of the notice of resignation or removal and must
be a bank or trust company having its principal office in the United
States and having a combined capital and surplus of at least
$50,000,000.
TITLE
Old Kent, each Depositary and any agent of Old Kent or the
applicable Depositary may treat the registered owner of any Depositary
Share as the absolute owner thereof (whether or not any payment in
respect of such Depositary Share is overdue and notwithstanding any
notice to the contrary) for the purpose of making payment and for all
other purposes.
DESCRIPTION OF DEBT SECURITIES
The following summary description of the Indentures (as defined
below) and the Debt Securities does not purport to be complete and is
qualified in its entirety by reference to the Indentures pursuant to
which such Debt Securities are issued. A copy of the forms of the
Indentures are filed as exhibits to the Registration Statement of
which this Prospectus is a part. Furthermore, the following summary
description of the Indentures and the Debt Securities relates to
certain terms and conditions applicable to the Debt Securities
generally. The particular terms of any series of Debt Securities will
be described in the applicable Prospectus Supplement. If so indicated
in such Prospectus Supplement, the terms of any such series may differ
from the terms set forth below.
The Debt Securities will constitute either Senior Debt Securities
or Subordinated Debt Securities of Old Kent. The Senior Debt
Securities will be issued under an indenture (the "Senior Indenture")
between Old Kent and the trustee specified in the applicable
Prospectus Supplement (the "Trustee"). The Subordinated Debt
Securities will be issued under an indenture (the "Subordinated
Indenture" and together with the Senior Indenture, the "Indentures"),
between Old Kent and the applicable Trustee.
Wherever particular defined terms of the Indentures are referred
to, it is intended that such definitions be incorporated herein by
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reference. Capitalized terms used in this section but not defined in
this Prospectus have the meanings given to them in the applicable
Indenture and are incorporated by reference in this Prospectus.
GENERAL
The respective Indentures provide that there is no limitation on
the amount of debt securities that may be issued thereunder from time
to time. The amount of Debt Securities that may be offered and sold
pursuant to this Prospectus, however, is limited to the aggregate
initial offering price of the securities registered under the
Registration Statement ($250,000,000) of which this Prospectus forms a
part, subject to reduction as the result of the sale by Old Kent of
other securities under the Registration Statement.
The Debt Securities will be direct, unsecured obligations of Old
Kent. The Senior Debt Securities of each series will rank equally with
all unsecured senior debt of Old Kent. The Subordinated Debt
Securities of each series will be subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness (as
defined below) of Old Kent. See "-- SUBORDINATION" below.
Unless otherwise set forth in the applicable Prospectus
Supplement, the Debt Securities will be issued in fully registered
form without coupons. The Debt Securities may be denominated in U.S.
dollars or in another currency or currency unit. Unless otherwise set
forth in the applicable Prospectus Supplement, any Debt Securities
that are denominated in U.S. dollars will be issued in denominations
of $1,000 or an integral multiple thereof. If any of the Debt
Securities are denominated in a foreign currency or currency unit, or
if principal of (or premium, if any, on) or any interest on any of the
Debt Securities is payable in any foreign currency or currency unit,
the authorized denominations, as well as any investment
considerations, restrictions, tax consequences, specific terms and
other information with respect to such issue of Debt Securities and
such foreign currency or currency unit, will be set forth in the
Prospectus Supplement relating thereto.
The Debt Securities may be issued in one or more series with the
same or various maturities. Certain Debt Securities may be issued that
provide for an amount less than the principal amount thereof to be due
and payable in the event of an acceleration of the maturity thereof
(each an "Original Issue Discount Security"). Original Issue Discount
Securities may bear no interest or may bear interest at a rate which
at the time of issuance is below market rates and will be sold at a
discount (which discount may be substantial) below their stated
principal amount. Certain Debt Securities may be deemed to be issued
with original issue discount for United States Federal income tax
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purposes. The Prospectus Supplement with respect to any series of Debt
Securities issued with such original issue discount will contain a
discussion of Federal income tax considerations with respect thereto.
The ability of Old Kent to make payments of principal of (and
premium, if any, on) and any interest on the Debt Securities may be
affected by the ability of Old Kent Bank to pay dividends. The ability
of Old Kent Bank, as well as of Old Kent, to pay dividends in the
future currently is, and could be further, influenced by bank
regulatory requirements and capital guidelines. See "SUPERVISION,
REGULATION AND OTHER MATTERS" above.
The applicable Prospectus Supplement will describe the following
terms, where applicable, of the Debt Securities in respect of which
this Prospectus is being delivered:
- the title of the Debt Securities;
- the limit, if any, on the aggregate principal amount of the Debt
Securities;
- the priority of payment of such Debt Securities;
- the price or prices (which may be expressed as a percentage of
the aggregate principal amount thereof) at which the Debt Securities
will be issued;
- the date or dates on which the Debt Securities will mature;
- the rate or rates (which may be fixed or variable) per annum at
which the Debt Securities will bear interest, if any, and the basis of
determining the same if other than on the basis of a 360-day year
consisting of twelve 30-day months;
- the date or dates from which such interest, if any, on the Debt
Securities will accrue, the Interest Payment Dates, if any, the dates
on which payment of such interest, if any, will commence and the
Regular Record Dates for such Interest Payment Dates, if any;
- the extent to which any of the Debt Securities will be issuable
in temporary or permanent global form and, if so, the identity of the
depositary for such global Debt Security, or the manner in which any
interest payable on a temporary or permanent global Debt Security will
be paid or such Debt Securities exchanged;
- the dates, if any, on which, and the price or prices at which,
the Debt Securities will, pursuant to any mandatory sinking fund
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provisions, or may, pursuant to any optional sinking fund or to any
purchase fund provisions, be redeemed by Old Kent, and the other
detailed terms and provisions of such sinking and/or purchase funds;
- the date, if any, after which, and the price or prices at which,
the Debt Securities may, pursuant to any optional redemption
provisions, be redeemed at the option of Old Kent or the Holder
thereof and the other detailed terms and provisions of such optional
redemption;
- with respect to Subordinated Debt Securities, the terms and
conditions, if any, relating to the conversion of such Subordinated
Debt Securities into other securities of Old Kent including the time
and place at which such Subordinated Debt Securities may be converted
into such other securities, the conversion price and any adjustments
to such conversion price and any other such provisions as may at the
time be applicable thereto;
- the denomination or denominations in which such Debt Securities
that are Registered Securities are authorized to be issued, if other
than in denominations of $1,000 and integral multiples thereof, and in
which such Debt Securities that are Bearer Securities are authorized
to be issued, if other than in denominations of $5,000;
- whether any of the Debt Securities will be issued in bearer form
and, if so, any limitations on issuance of such bearer Debt Securities
(including exchange for registered Debt Securities of the same
series);
- information with respect to book-entry procedure;
- whether any of the Debt Securities will be issued as Original
Issue Discount Securities;
- each office or agency where, subject to the terms of the
applicable Indenture, such Debt Securities will be payable or may be
presented for registration of transfer, exchange or, if applicable,
conversion;
- the currency or currency unit in which such Debt Securities are
issued and in which the principal of, premium (if any) and interest on
and Additional Amounts, if any, in respect of such Debt Securities
will be payable;
- whether the amount of payments of principal of, premium (if any)
and interest on such Debt Securities may be determined with reference
to an index, formula or other method (which index, formula or method
may, but need not be, based on a currency, currencies, currency unit
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or currency units) and the manner in which such amounts will be
determined;
- whether Old Kent or a Holder may elect payment of the principal
of, premium (if any) and interest on such Debt Securities in a
currency, currencies, currency unit or currency units other than that
in which such Debt Securities are denominated or stated to be payable,
the period or periods within which, and the terms and conditions upon
which, such election may be made, and the time and manner of
determining the exchange rate between the currency, currencies,
currency unit or currency units in which such Debt Securities are
denominated or stated to be payable and the currency, currencies,
currency unit or currency units in which such Debt Securities are to
be so payable;
- if other than the Trustee, the identity of the Security
Registrar, Paying Agent and/or Authenticating Agent;
- if applicable, the defeasance of certain obligations by Old Kent
pertaining to Debt Securities of the series;
- whether the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Debt Securities may be
payable by check, wire transfer, or other method on terms satisfactory
to Old Kent and the Trustee;
- whether and under what circumstances Old Kent will pay Additional
Amounts as contemplated by Section 1004 of the related Indenture (the
term "interest," as used in this Prospectus, includes such Additional
Amounts); and
- any other terms of such Debt Securities.
If so provided in the applicable Prospectus Supplement, Debt
Securities of a single series may be issued having different terms and
provisions.
CONSOLIDATION, MERGER, OR SALE OF ASSETS
Nothing in the Indentures prevents Old Kent from consolidating or
merging with or into, or conveying, transferring or leasing the
property of Old Kent as an entirety or substantially as an entirety
to, any Person (whether or not affiliated with Old Kent); provided,
however, that (i) such Person is a corporation organized and existing
under the laws of the United States, any state thereof or the District
of Columbia and expressly assumes (a) the due and punctual payment of
the principal of, any premium and interest on and any Additional
Amounts with respect to the Debt Securities and (b) the performance of
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every other covenant that Old Kent is to perform or observe under the
applicable Indenture and, if applicable, provides for conversion
rights in accordance with the Subordinated Indenture; (ii) no Event of
Default occurs and is continuing immediately after giving effect to
the transaction; and (iii) either Old Kent or the successor Person
delivers to the Trustee certain certificates and opinions specified in
the applicable Indenture that state that the transaction complies with
such Indenture.
LEVERAGED AND OTHER TRANSACTIONS
Neither the Senior Indenture nor the Subordinated Indenture
contains provisions that would provide protection to holders of Debt
Securities against a decline in credit quality resulting from
takeovers, recapitalizations, the incurrence of additional
indebtedness or similar restructurings by Old Kent. If credit quality
declines as a result of such an event, or otherwise, the ratings of
any Debt Securities then outstanding may be withdrawn or downgraded.
REGISTRATION, TRANSFER, PAYMENT AND PAYING AGENT
Unless otherwise indicated in the applicable Prospectus
Supplement, each series of Debt Securities will be issued in
registered form only, without coupons. The Indentures, however,
provide that Old Kent may also issue Debt Securities in bearer form
only, or in both registered and bearer form. Debt Securities issued in
bearer form will have interest coupons attached, unless issued as zero
coupon securities. Debt Securities in bearer form will not be offered,
sold, resold or delivered in connection with their original issuance
in the United States or to any United States person other than offices
located outside the United States of certain United States financial
institutions. As used in this "DESCRIPTION OF DEBT SECURITIES,"
"United States person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or
organized in or under the laws of the United States, or any estate or
trust, the income of which is subject to United States federal income
taxation regardless of its source, and "United States" means the
United States of America (including the States and the District of
Columbia), its territories, its possessions and other areas subject to
its jurisdiction. Purchasers of Debt Securities in bearer form will be
subject to certification procedures and may be affected by certain
limitations under United States tax laws. Such procedures and
limitations will be described in the Prospectus Supplement relating to
the offering of the Debt Securities in bearer form.
Unless otherwise indicated in the applicable Prospectus
Supplement, Debt Securities in registered form will be issued in
denominations of $1,000 and any integral multiple thereof and Debt
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Securities in bearer form will be issued in denominations of $5,000.
No service charge will be made for any transfer or exchange of the
Debt Securities, but Old Kent may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection
therewith.
Unless otherwise described in the Prospectus Supplement relating
thereto, the principal, premium, if any, and interest, if any, of or
on the Debt Securities will be payable, and the transfer of the Debt
Securities will be registrable, at the corporate trust office of Old
Kent Bank, provided that payment of interest may be made at the option
of Old Kent by check mailed to the address appearing in the Security
Register of the Person in whose name a Registered Security is
registered at the close of business on the Regular Record Date.
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of principal of, and premium, if any, and
interest, if any, on Debt Securities in bearer form will be made,
subject to any applicable laws and regulations, at such office outside
the United States as is specified in the Prospectus Supplement and as
Old Kent may designate from time to time, at the option of the Holder
by check or by transfer to an account maintained by the payee with a
bank located outside the United States. Unless otherwise indicated in
the applicable Prospectus Supplement, payment of interest and certain
Additional Amounts, if any, on Debt Securities in bearer form will be
made only against surrender of the coupon relating to such Interest
Payment Date, unless issued as zero coupon securities. No payment with
respect to any Debt Security in bearer form will be made at an office
or agency of Old Kent in the United States or by check mailed to any
address in the United States or by transfer to an account maintained
with a bank located in the United States.
MODIFICATION OF THE INDENTURE; WAIVER OF COVENANTS
Each Indenture provides that, with the consent of the holders of
not less than a majority in aggregate principal amount of the
outstanding Debt Securities of each affected series, modifications and
alterations of such Indenture may be made that affect the rights of
the holders of such Debt Securities; provided, however, that no such
modification or alteration may be made without the consent of the
holder of each Debt Security so affected that would, among other
things, (i) change the maturity of the principal of, or of any
installment of interest (or premium, if any) on, any Debt Security
issued pursuant to such Indenture, or reduce the principal amount
thereof or any premium thereon, or change the method of calculation of
interest or the currency of payment of principal or interest (or
premium, if any) on, or reduce the minimum rate of interest thereon,
or impair the right to institute suit for the enforcement of any such
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payment on or with respect to any such Debt Security, or reduce the
amount of principal of an Original Issue Discount Security that would
be due and payable upon an acceleration of the maturity thereof; or
(ii) reduce the above-stated percentage in principal amount of
outstanding Debt Securities required to modify or alter such
Indenture.
REGARDING THE TRUSTEE
Old Kent and its subsidiaries may maintain deposit accounts and
conduct various banking transactions with the Trustee.
SENIOR DEBT SECURITIES
EVENTS OF DEFAULT
The following are Events of Default under the Senior Indenture
with respect to Senior Debt Securities of any series issued
thereunder: (i) failure to pay any interest or any Additional Amounts
on any Senior Debt Security of that series when due, and continuance
of such default for 30 days; (ii) failure to pay principal of or
premium, if any, on any Senior Debt Security of that series when due;
(iii) failure to deposit any sinking fund payment, when due, in
respect of any Senior Debt Security of that series; (iv) failure to
perform any other covenant or warranty of Old Kent in the Senior
Indenture or the Senior Debt Securities (other than a covenant or
warranty included in such Senior Indenture solely for the benefit of a
series of Senior Debt Securities other than that series) and
continuation of that failure for 60 days after written notice as
provided in such Senior Indenture; (v) acceleration of indebtedness in
principal amount in excess of $125,000,000 for money borrowed by Old
Kent or any Principal Constituent Bank under the terms of the
instrument under which such indebtedness is issued or secured, if such
acceleration is not annulled, or such indebtedness is not discharged,
within 30 days after written notice as provided in such Senior
Indenture; and (vi) certain events in bankruptcy, insolvency or
reorganization of Old Kent or any Principal Constituent Bank.
ACCELERATION
If any Event of Default with respect to Debt Securities of any
series at the time Outstanding occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Debt Securities of that series may
declare the principal amount of all Debt Securities of that series, or
such portion of the principal amount as may be specified in the terms
of that series, to be due and payable immediately by a notice in
writing to Old Kent (and to the Trustee if given by Holders). However,
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at any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or
decree based on such acceleration has been obtained by the Trustee,
the Holders of not less than a majority in principal amount of
Outstanding Debt Securities of that series may, under certain
circumstances, rescind and annul such acceleration if all Events of
Default, except, in the case of Senior Debt Securities, the non-
payment of principal of that series which has become due solely by
such declaration of acceleration, have been cured or waived as
provided in the applicable Indenture.
RESTRICTIVE COVENANTS REGARDING A PRINCIPAL CONSTITUENT BANK
The Senior Indenture contains a covenant by Old Kent that, except
as otherwise provided below, Old Kent will not sell, assign, pledge or
otherwise grant a security interest in, transfer or otherwise dispose
of, or permit the issuance of, or permit a Subsidiary to sell, assign,
pledge or otherwise grant a security interest in, transfer or
otherwise dispose of, any shares of, or any securities convertible
into, or options, warrants or rights to subscribe for or purchase
shares of Capital Stock of any Subsidiary that is: (i) a Principal
Constituent Bank; or (ii) a Subsidiary that owns shares of, or any
securities convertible into, or options, warrants or rights to
subscribe for or purchase shares of, Capital Stock of a Principal
Constituent Bank; PROVIDED, HOWEVER, that such covenant does not
prohibit (a) any dispositions made by Old Kent or any Subsidiary
(1) acting in a fiduciary capacity for any Person other than Old Kent
or any Subsidiary or (2) to Old Kent or any of its directly or
indirectly wholly owned (except for directors' qualifying shares)
Subsidiaries, or (b) the merger or consolidation of a Principal
Constituent Bank with and into a Constituent Bank or the merger or
consolidation of any Principal Constituent Bank with and into any
other Principal Constituent Bank. Such covenant also does not prohibit
sales, assignments, pledges or other grants of a security interest,
transfers, issuances or other dispositions of shares of Capital Stock
of a corporation referred, to in (i) or (ii) above where: (a) the
sales, assignments, pledges or other grants of a security interest,
transfers, issuances or other dispositions are made, in the minimum
amount required by law, to any Person for the purpose of the
qualification of such Person to serve as a director; or (b) the sales,
assignments, pledges or other grants of a security interest,
transfers, issuances or other dispositions are made in compliance with
an order of a court or a regulatory authority of competent
jurisdiction or as a condition imposed by any such court or authority
to the acquisition by Old Kent, directly or indirectly, of any other
corporation or entity; or (c) in the case of a disposition or issuance
of shares of Capital Stock or any securities convertible into Capital
Stock of a Principal Constituent Bank, or sales of Capital Stock or
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any securities convertible into Capital Stock of any Subsidiary
included in (ii) above, the sales, assignments, pledges or other
grants of a security interest, transfers, issuances or other
dispositions are for fair market value (as determined by the Board of
Directors of Old Kent and the Subsidiary disposing of such shares or
securities, such determination being evidenced by a Board Resolution)
and, after giving effect to such disposition and to any potential
dilution (if the shares or securities are convertible into Capital
Stock), Old Kent and its directly or indirectly wholly owned (except
for directors' qualifying shares) Subsidiaries will own directly not
less than 80% of the Voting Stock of such Principal Constituent Bank
or Subsidiary; or (d) a Principal Constituent Bank sells additional
shares of Capital Stock to its shareholders at any price, so long as
immediately after such sale Old Kent owns, directly or indirectly, at
least as great a percentage of the Voting Stock of such Principal
Constituent Bank as it owned prior to such sale of additional shares.
A "Constituent Bank" is a Subsidiary that is a Bank. A
"Principal Constituent Bank" is a Constituent Bank the consolidated
assets of which constitute 25% or more of Old Kent's consolidated
assets. At the date of this Prospectus, Old Kent Bank is the only
Principal Constituent Bank.
RESTRICTIVE COVENANTS REGARDING CERTAIN ACQUISITIONS
The Senior Indenture contains a covenant prohibiting Old Kent
from acquiring the Capital Stock of any corporation or acquiring
substantially all the assets and liabilities of any corporation,
unless, immediately after such acquisition, Old Kent would be in full
compliance with such Indenture. In addition, the Senior Indenture
contains a covenant prohibiting Old Kent from creating or permitting
any liens upon any shares of Common Stock of any Principal Constituent
Bank to secure any indebtedness without securing the Senior Debt
Securities equally and ratably with all indebtedness secured thereby.
SUBORDINATED DEBT SECURITIES
SUBORDINATION
The Subordinated Debt Securities are subordinate and subject, to
the extent and in the manner set forth in the Subordinated Indenture,
in right of payment to the prior payment in full of all Senior
Indebtedness of Old Kent. "Senior Indebtedness" is defined by the
Subordinated Indenture as the principal of and premium, if any, and
interest on any indebtedness of Old Kent for money borrowed (including
all indebtedness of Old Kent for borrowed and purchased money of Old
Kent, all obligations of Old Kent arising from off-balance sheet
guarantees by Old Kent and direct credit substitutes, and obligations
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of Old Kent associated with derivative products such as interest and
foreign exchange rate contracts and commodity contracts) that is
outstanding on the date hereof or is hereafter created, incurred or
assumed, for the payment of which Old Kent is at the time of
determination responsible or liable as obligor, guarantor or
otherwise, and all deferrals, renewals, extensions and refundings of
any such indebtedness or obligations, other than the Securities or any
other indebtedness as to which, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it
is provided that such indebtedness is subordinate in right of payment
to any other indebtedness of Old Kent.
The Prospectus Supplement relating to each series of Subordinated
Debt Securities will set forth the aggregate amount of then
outstanding Senior Indebtedness of Old Kent and any limitation on the
issuance of additional Senior Indebtedness.
Old Kent may not pay principal of (and premium, if any, on) or
any interest on the Subordinated Debt Securities, and may not purchase
any Subordinated Debt Securities if any default or event of default
with respect to any Senior Indebtedness shall have occurred and be
continuing beyond the applicable grace period. In addition, in the
event of any insolvency or bankruptcy proceedings (and any
receivership, liquidation, reorganization, arrangement or other
similar proceedings in connection therewith), relative to Old Kent or
to its property, and in the event of any proceedings for voluntary
liquidation, dissolution or other winding up of Old Kent, whether or
not involving insolvency or bankruptcy, then the holders of Senior
Indebtedness shall be entitled to receive payment in full of all
principal, premium and interest on all Senior Indebtedness before the
Holders of the Subordinated Debt Securities are entitled to receive
any payment on account of principal, premium, if any, or interest or
additional amounts. Further, subject to the power of a court to make
other equitable provisions, the holders of Senior Indebtedness will be
entitled to receive for application in payment thereof any payment or
distribution of any kind or character, whether in cash or property or
securities, that may be payable or deliverable in any such proceedings
in respect of the Subordinated Debt Securities after giving effect to
any concurrent payment or distribution in respect of such Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Subordinated Debt Holders shall be subrogated (equally and ratably
with the holders of all indebtedness of Old Kent which, by its express
terms, ranks on a parity with the Subordinated Debt Securities and is
entitled to like rights of subrogation) to the rights of the holders
of Senior Indebtedness to receive payments or distributions of assets
of Old Kent applicable to the Senior Indebtedness until the
Subordinated Debt Securities shall be paid in full.
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EVENT OF DEFAULT; LIMITED RIGHT OF ACCELERATION
An Event of Default is defined under the Subordinated Indenture
with respect to Subordinated Debt Securities of any series issued
thereunder as certain events in bankruptcy, insolvency or
reorganization of Old Kent or any Principal Constituent Bank. As such,
unless otherwise specified in the Prospectus Supplement relating to
any series of Subordinated Securities, payment of principal of the
Subordinated Securities may be accelerated only in case of the
bankruptcy, insolvency or reorganization of Old Kent. There is no
right of acceleration in the case of a default in the payment of
principal of, premium, if any, or interest on the Subordinated Debt
Securities or the performance of any other covenant of Old Kent in the
Subordinated Indenture.
CONVERTIBILITY OF SUBORDINATED DEBT
The Subordinated Debt Securities of any series may be
convertible, at the option of the holder, into Common Stock if the
Prospectus Supplement relating to such series of Debt Securities so
provides. In such case, such Prospectus Supplement will set forth (i)
the period(s) during which such conversion may be elected; (ii) the
conversion price payable and the number of shares or amount of Common
Stock purchasable upon conversion, and adjustments thereto, if any, in
certain events; (iii) the procedures for electing such conversion; and
(iv) all other terms for such conversion (which terms shall not be
inconsistent with the provisions of the applicable Indenture).
DESCRIPTION OF SECURITIES WARRANTS
The following summary description of the Securities Warrants and
Securities Warrant Certificates (as defined below) does not purport to
be complete and is qualified in its entirety by reference to the
Securities Warrants and the Securities Warrant Agreement (as defined
below), the forms of which will be incorporated by reference into the
Registration Statement of which this Prospectus is a part. The
summary is qualified in its entirety by reference to all the
provisions of the Securities Warrant Agreement and the Securities
Warrant Certificates, including the definitions therein of certain
terms. Wherever defined terms of the Securities Warrant Agreement are
referred to, it is intended that such defined termed will be
incorporated herein by reference.
The particular terms of any series of Securities Warrants will be
described in the applicable Prospectus Supplement. If so indicated in
such Prospectus Supplement, the terms of any such series may differ
from the terms set forth below.
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GENERAL
Old Kent may issue, together with any Debt Securities or
Preferred Stock or Common Stock offered by any Prospectus Supplement
or separately, Securities Warrants for the purchase of other Debt
Securities or Preferred Stock or Common Stock. The Securities Warrants
are to be issued under warrant agreements (each a "Securities Warrant
Agreement") to be entered into between Old Kent and a bank or trust
company, as warrant agent ("Securities Warrant Agent"), all as set
forth in the Prospectus Supplement relating to the particular issue of
Securities Warrants. The form of Securities Warrant Agreement,
including the form of certificates representing the Securities
Warrants ("Securities Warrant Certificates"), reflecting the
alternative provisions to be included in the Securities Warrant
Agreements that will be entered into with respect to particular
offerings of Securities Warrants, is filed as an exhibit to the
Registration Statement.
The Prospectus Supplement relating to the particular issue of
Securities Warrants offered thereby will describe the terms of the
offered Securities Warrants, the Securities Warrant Agreement relating
to the offered Securities Warrants and the Securities Warrant
Certificates representing the offered Securities Warrants, including
the following: (i) if the Securities Warrants are offered for separate
consideration, the offering price and the Currency for which
Securities Warrants may be purchased; (ii) the designation, aggregate
principal amount, Currency and terms of the series of Debt Securities
purchasable upon exercise of the offered Securities Warrants; (iii)
the designation, number, stated value and terms (including, without
limitation, liquidation, dividend, conversion and voting rights) of
the series of Preferred Stock purchasable upon exercise of Preferred
Stock Warrants and the price at which such number of shares of
Preferred Stock of such series may be purchased upon such exercise;
(iv) the number of shares of Common Stock purchasable upon exercise of
Common Stock Warrants and the price at which such number of shares of
Common Stock may be purchased upon such exercise; (v) the date, if
any, on and after which the offered Securities Warrants and the
related Debt Securities and/or Preferred Stock and/or Common Stock
will be separately transferable; (vi) the date on which the right to
exercise the offered Securities Warrants will commence and the date
("Expiration Date") on which such right will expire; (vii) a
discussion of the specific U.S. federal income tax, accounting and
other considerations applicable to the Securities Warrants; (viii)
whether the offered Securities Warrants represented by the Securities
Warrant Certificates will be issued in registered or bearer form, and
if registered, where they may be transferred and registered; and (ix)
any other terms of the offered Securities Warrants.
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Securities Warrant Certificates will be exchangeable on the terms
specified in the Prospectus Supplement for new Securities Warrant
Certificates of different denominations and Securities Warrants may be
exercised at the corporate trust office of the Securities Warrant
Agent or any other office indicated in the Prospectus Supplement
relating thereto. Prior to the exercise of their Securities Warrants,
holders of Securities Warrants will not have any of the rights of
holders of the Debt Securities or Preferred Stock or Common Stock
purchasable upon such exercise, including the right in the case of
Debt Warrants to payments of principal of or any premium or interest,
if any, on the Debt Securities purchasable upon such exercise, or to
enforce covenants in the Indentures and in the case of Preferred Stock
Warrants and Common Stock Warrants, the right to receive payments of
dividends or distributions of any kind, if any, on the Preferred Stock
and Common Stock, respectively, purchasable upon exercise or to
exercise any applicable right to vote.
EXERCISE OF SECURITIES WARRANTS
Each Securities Warrant will entitle the holder to purchase such
principal amount of Debt Securities or such number of shares of
Preferred Stock or Common Stock, as the case may be, at such exercise
price as set forth in, or as calculated as described in the applicable
Prospectus Supplement relating to the Securities Warrants, by payment
of such exercise price in full in the Currency and in the manner
specified in the Prospectus Supplement. Securities Warrants may be
exercised at any time up to the close of business on the Expiration
Date; unexercised Securities Warrants will become void. Upon receipt
at the corporate trust office of the Securities Warrant Agent or any
other office indicated in the Prospectus Supplement of (i) full
payment of the Securities Warrant Price for each Securities Warrant
exercised and (ii) the Securities Warrant Certificate, properly
completed and duly executed, Old Kent will, as soon as practicable,
issue the Debt Securities or Preferred Stock or Common Stock to which
such holder is entitled. If less than all of the Securities Warrants
represented by such Securities Warrant Certificate are exercised, a
new Securities Warrant Certificate will be issued for the remaining
number of Securities Warrants.
ANTIDILUTION PROVISIONS
In the case of Warrants to purchase Common Stock or Preferred
Shares, the exercise price payable and the number of shares of Common
Stock or Preferred Shares purchasable upon the exercise of each
Warrant will be subject to adjustment in certain events, including (i)
the issuance of a stock dividend on Old Kent's Common Stock or any
class or series of Preferred Shares for which Warrants may be
exercised or a combination, subdivision or reclassification of Common
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Stock or Preferred Shares; (ii) the issuance of rights, warrants or
options to all holders of (a) a class or series of Old Kent's
Preferred Shares for which warrants may be exercised or (b) Old Kent's
Common Stock entitling the holders thereof to purchase Common Stock or
Preferred Shares at a price per share less than the current market
price per share; or (iii) any distribution by Old Kent to the holders
of a class or series of Preferred Shares for which warrants may be
exercised or to holders of its Common Stock of evidences of
indebtedness of Old Kent or of assets (excluding cash dividends or
distributions payable out of consolidated earnings and earned surplus
and dividends or distributions referred to in (i) above). No
adjustment in the number of shares purchasable upon exercise of the
Warrants will be required until cumulative adjustments require an
adjustment of at least 1% of such number.
MODIFICATION
Any Warrant Agreement and the terms of the related Warrants may
be amended by Old Kent and the applicable Warrant Agent, without the
consent of the holders of any such Warrants, for the purpose of (i)
curing any ambiguity, or curing, correcting or supplementing any
defective or inconsistent provision contained therein, or making any
other provisions with respect to matters or questions arising under
the Warrant Agreement that will not adversely affect the interests of
the holders of such Warrants in any material respect.
ENFORCEABILITY OF RIGHTS BY HOLDERS OF WARRANTS
Each Warrant Agent will act solely as the agent of Old Kent under
the applicable Warrant Agreement and will not assume any obligation or
relationship of agency or trust for or with any holder of any Warrant
except as expressly set forth under the applicable Warrant Agreement.
A single bank or trust company may act as Warrant Agent for more than
one issue of Warrants. A Warrant Agent will have no duty or
responsibility in case of any default by Old Kent in the performance
of its covenants or agreements arising under the applicable Warrant
Agreement or Warrant including, without limitation, any duty or
responsibility to initiate any proceedings at law or otherwise or to
make any demand upon Old Kent. Any holder of a Warrant may, without
the consent of the related Warrant Agent or the holder of any other
Warrant, enforce by appropriate legal action, in and for its own
behalf, its right to exercise, and receive the Securities purchasable
upon exercise of, its Warrants.
FRACTIONAL SHARES
No fractional shares will be issued upon exercise of Warrants;
instead Old Kent will pay cash value of any fractional shares
otherwise issuable.
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GLOBAL SECURITIES
Unless otherwise specified in the applicable Prospectus
Supplement, the Securities will be issued in the form of one or more
global certificates (collectively, with respect to each series or
issue of Securities, the "Global Securities") registered in the name
of a depositary or a nominee of a depositary. Unless otherwise
specified in the applicable Prospectus Supplement, the depositary will
be The Depository Trust Company ("DTC"). Old Kent has been informed
by DTC that its nominee will be Cede & Co. ("Cede"). Accordingly,
Cede is expected to be the initial registered holder of all Securities
that are issued in global form. No person that acquires a beneficial
interest in such Securities will be entitled to receive a certificate
representing such person's interest in the Securities except as set
forth herein or in the applicable Prospectus Supplement. Unless and
until definitive Securities are issued under the limited circumstances
described below, all references to actions by "Holders" of Securities
issued in global form will refer to actions taken by DTC upon
instructions from its Participants (as defined below), and all
references herein to payments and notices to Holders will refer to
payments and notices to DTC or Cede, as the registered holder of such
Securities.
DTC has informed Old Kent that it is a limited purpose trust
company organized under the New York Banking Law, a "banking
organization" within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing
agency" registered pursuant to Section 17A of the Exchange Act, and
that it was created to hold securities for its participating
organizations ("Participants") and to facilitate the clearance and
settlement of securities transactions among Participants through
electronic book-entry, thereby eliminating the need for physical
movement of certificates. Participants include securities brokers and
dealers, banks, trust companies and clearing corporations, and may
include certain other organizations. Indirect access to the DTC
system also is available to others such as banks, brokers, dealers and
trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly
("Indirect Participants").
Persons that are not Participants or Indirect Participants but
desire to purchase, sell or otherwise transfer ownership of, or other
interests in, Securities may do so only through Participants and
Indirect Participants. Under a book-entry format, holders may
experience some delay in their receipt of payments, as such payments
will be forwarded by the agent designated by Old Kent to Cede, as
nominee for DTC. DTC will forward such payments to its Participants,
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which thereafter will forward them to Indirect Participants or
holders. Holders will not be recognized by Old Kent or by the
applicable registrar, transfer agent, Trustee, Depositary or
Securities Warrant Agent, or their agents, as registered holders of
the Securities entitled to the benefits of the Articles of
Incorporation or the applicable Indenture, Deposit Agreement or
Securities Warrant Agreement. Beneficial owners that are not
Participants will be permitted to exercise their rights as such only
indirectly through and subject to the procedures of Participants and,
if applicable, Indirect Participants.
Under the rules, regulations and procedures creating and
affecting DTC and its operations as currently in effect (the "Rules"),
DTC will be required to make book-entry transfers of Securities among
Participants and to receive and transmit payments to Participants.
Participants and Indirect Participants with which beneficial owners of
Securities have accounts with respect to the Securities similarly are
required by the Rules to make book-entry transfers and receive and
transmit such payments on behalf of their respective account holders.
Because DTC can act only on behalf of Participants, who in turn
act only on behalf of Participants or Indirect Participants, and on
behalf of certain banks, trust companies and other persons approved by
it, the ability of a beneficial owner of Securities issued in global
form to pledge such Securities to persons or entities that do not
participate in the DTC system, or to otherwise act with respect to
such Securities, may be limited due to the unavailability of physical
certificates for such Securities.
DTC has advised Old Kent that DTC will take any action permitted
to be taken by a registered holder of any Securities under the
Articles of Incorporation or the applicable Indenture, Deposit
Agreement or Securities Warrant Agreement only at the direction of one
or more Participants to whose accounts with DTC such Securities are
credited.
Unless otherwise specified in the applicable Prospectus
Supplement, a Global Security will be exchangeable for the relevant
definitive Securities registered in the names of persons other than
DTC or its nominee only if (i) DTC notifies Old Kent that it is
unwilling or unable to continue as depositary for such Global Security
or if at any time DTC ceases to be a clearing agency registered under
the Exchange Act at a time when DTC is required to be so registered in
order to act as such depositary, (ii) Old Kent determines that such
Global Security will be so exchangeable or (iii) there has occurred
and is continuing a default in the payment of any amount due in
respect of the Securities or, in the case of Debt Securities, an Event
of Default or an event that, with the giving of notice or lapse of
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time, or both, would constitute an Event of Default with respect to
such Debt Securities. Any Global Security that is exchangeable
pursuant to the preceding sentence will be exchangeable for Securities
registered in such names as DTC directs.
Upon the occurrence of any event described in the immediately
preceding paragraph, DTC is generally required to notify all
Participants of the availability through DTC of definitive Securities.
Upon surrender by DTC of the Global Security representing the
Securities and delivery of instructions for re-registration, the
registrar, transfer agent, Trustee, Depositary or Securities Warrant
Agent, as the case may be, will reissue the Securities as definitive
Securities, and thereafter such persons will recognize the holders of
such definitive Securities as registered holders of Securities
entitled to the benefits of the Articles of Incorporation or the
applicable Indenture, Deposit Agreement and/or Securities Warrant
Agreement.
Except as described above, a Global Security may not be
transferred except as a whole by DTC to a nominee of DTC or by a
nominee of DTC to DTC or another nominee of DTC or to a successor
depositary appointed by Old Kent. Except as described above, DTC may
not sell, assign, transfer or otherwise convey any beneficial interest
in a Global Security evidencing all or part of any Securities unless
such beneficial interest is in an amount equal to an authorized
denomination for such Securities.
PLAN OF DISTRIBUTION
Old Kent may sell the Securities to or through underwriting
syndicates represented by managing underwriters, or to or through
underwriters without a syndicate, through agents or dealers, or
directly to other purchasers. Only underwriters or agents named in
the applicable Prospectus Supplement are deemed to be underwriters or
agents, as the case may be, in connection with the Securities covered
thereunder. If Old Kent, directly or through agents, solicits offers
to purchase the Securities, Old Kent reserves the sole right to accept
and, together with its agents, to reject in whole or in part any
proposed purchase of Securities.
The distribution of the Securities may be effected from time to
time in one or more transactions at a fixed price or prices (which may
be changed from time to time), at market prices prevailing at the time
of sale, at prices related to such prevailing market prices or at
negotiated prices. Each Prospectus Supplement will describe the
method of distribution of the Securities to which such Prospectus
Supplement relates. Certain restrictions relating to distribution of
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Securities in connection with an offering outside the United States
will be set forth in the applicable Prospectus Supplement.
In connection with the sale of Securities, underwriters or agents
may receive compensation from Old Kent or from purchasers of
Securities for whom they act as agents in the form of discounts,
concessions or commissions. Underwriters may sell Securities to or
through dealers, and such dealers may receive compensation in the form
of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agents. The
underwriters, dealers, and agents that participate in the distribution
of Securities may be deemed to be underwriters under the Securities
Act and any discounts or commissions received by them and any profit
on the resale of Securities by them may be deemed to be underwriting
discounts and commissions under the Securities Act. Any underwriter
or agent will be identified, and any such compensation will be
described, in the applicable Prospectus Supplement.
Unless otherwise indicated in the applicable Prospectus
Supplement, the obligations of any such underwriters to purchase
Securities will be subject to certain conditions precedent, and each
of the underwriters with respect to a sale of Securities will be
obligated to purchase all of its Securities if any are purchased.
Unless otherwise indicated in the applicable Prospectus Supplement,
any such agent involved in the offer and sale of the Securities in
respect of which this Prospectus is being delivered will be acting on
a "best efforts" basis for the period of its appointment.
Under agreements which may be entered into with Old Kent, any
underwriters, dealers or agents who participate in the distribution of
Securities may be entitled to indemnification by Old Kent against
certain liabilities, including liabilities under the Act, or
contribution from Old Kent for payments required to be made by such
underwriters, dealers or agents in respect thereof.
If so indicated in the applicable Prospectus Supplement, Old Kent
will authorize dealers or other persons acting as Old Kent's agents to
solicit offers by certain institutions to purchase any Securities from
Old Kent pursuant to contracts providing for payment and delivery on a
future date. Institutions with which such contracts may be made
include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions
and others, but in all cases such institutions must be approved by Old
Kent. The obligations of any purchaser under any such contract will
be subject to the condition that the purchase of any Securities will
not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and
such other agents will not have any responsibility in respect of the
validity or performance of such contracts.
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If Old Kent offers and sells Securities directly to a purchaser
or purchasers in respect of which this Prospectus is delivered,
purchasers involved in the re-offer or resale of such Securities, if
such purchasers in respect thereof may be deemed to be underwriters as
that term is defined in the Securities Act, will be named and the
terms of such re-offers or resales will be set forth in the applicable
Prospectus Supplement. Such purchasers may then re-offer and resell
such Securities to the public or otherwise at varying prices to be
determined by such purchasers at the time of resale or as otherwise
described in the applicable Prospectus Supplement. Purchasers of
Securities directly from Old Kent may be entitled under agreements
that they may enter into with Old Kent to indemnification by Old Kent
against certain liabilities, including liabilities under the
Securities Act, and may engage in transactions with or perform
services for Old Kent in the ordinary course of their business or
otherwise.
The underwriters, dealers, or agents and their associates may be
customers of (including borrowers from), engage in transactions with,
and perform services for, Old Kent, a Trustee, or one or more of their
affiliates in the ordinary course of business.
VALIDITY OF THE SECURITIES
The validity of any Securities offered hereby will be passed upon
for Old Kent by its counsel, Warner Norcross & Judd LLP, Grand Rapids,
Michigan.
Warner Norcross & Judd LLP and certain members of the firm are
indebted to, and have other banking and trust relationships with, Old
Kent Bank and other affiliates of Old Kent. As of May 27, 1998,
partners of and attorneys employed by Warner Norcross & Judd LLP were
the beneficial owners of 416,249 shares of Common Stock (such number
of shares has not been adjusted for any subsequent stock dividends),
which at such time, had an aggregate market value of approximately
$16,259,560. Shares reported as beneficially owned include all shares
as to which such persons have the direct or indirect and sole or
shared power to direct voting of disposition, including shares held in
personal as well as fiduciary capacities.
EXPERTS
The financial statements of Old Kent incorporated by reference in
this Prospectus and elsewhere in the Registration Statement of which
this Prospectus is a part, to the extent and for the periods indicated
in their reports, have been audited by Arthur Andersen LLP,
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independent public accountants, and are incorporated by reference
herein in reliance upon the authority of said firm as experts in
giving said reports.
WHERE TO FIND MORE INFORMATION
Old Kent has filed a registration statement on Form S-3 to
register with the SEC the Securities that may be offered by Old Kent
using this Prospectus and the Prospectus Supplement. This Prospectus
is a part of that registration statement. As allowed by SEC rules,
this Prospectus does not contain all of the information contained in
the registration statement or the exhibits to the registration
statement.
Old Kent is subject to the informational requirements of the
Exchange Act. Accordingly, it files annual, quarterly and current
reports, proxy statements, and other information with the SEC. The
public may read and copy any reports, statements, or other information
that Old Kent files at the SEC's public reference room at Judiciary
Plaza, 450 Fifth Street N.W., Washington, D.C. 20549. The public may
obtain information on the operation of the public reference room by
calling the SEC at 1-800-SEC-0330. Old Kent's SEC filings are also
available to the public from commercial document retrieval services
and at the web site maintained by the SEC at "http://www.sec.gov."
The SEC allows Old Kent to incorporate by reference information
into this Prospectus. This means that Old Kent can disclose important
information by referring to another document filed separately with the
SEC. The information incorporated by reference is deemed to be part
of this Prospectus, except for any information superseded by
information in this Prospectus or a Prospectus Supplement. This
Prospectus incorporates by reference the documents set forth below
that Old Kent has previously filed with the SEC. These documents
contain important information about Old Kent and its finances.
OLD KENT SEC FILINGS (FILE NO. 0-12216) PERIOD
Annual Report on Form 10-K Year ended December 31, 1997
(as amended on Form 10-K/A)
Quarterly Reports on Form 10-Q Quarters ended March 31, 1998
and June 30, 1998
Current Reports on Form 8-K Dated January 27, 1998, March
4, 1998, April 22, 1998, June
15, 1998, July 16, 1998
Registration Statement on Form 8-A Filed on January 22, 1997
Registration Statement on Form 8-B Filed on May 31, 1984
The documents subsequently filed by Old Kent with the SEC
pursuant to Sections 13(a), 13(c), 14, and 15 of the Exchange Act
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between the date of this Prospectus and prior to the termination of
any offering of Securities made by this Prospectus are also
incorporated by reference into this Prospectus.
Old Kent will provide to each person, including any beneficial
owner, to whom this Prospectus is delivered, a copy of any or all of
the information that has been incorporated by reference in this
Prospectus but not delivered with this Prospectus. You may obtain
such documents without charge by requesting them in writing or by
telephone from Old Kent at the following address:
Old Kent Financial Corporation
Attn: Secretary
111 Lyon Street NW
Grand Rapids, Michigan 49503
Tel: (616) 771-5272
You should rely only on the information contained or incorporated
by reference in this Prospectus and its Prospectus Supplement. Old
Kent has not authorized anyone to provide you with information that is
different from what is contained in this Prospectus.
You should not assume that the information contained in this
Prospectus is accurate as of any date other than the date of this
Prospectus appearing on its cover, and neither the delivery of this
Prospectus to you nor the issuance of Securities under it shall create
any implication to the contrary.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses in connection
with the issuance and distribution of the securities being registered,
other than underwriting discounts and commissions. All amounts shown
(other than the SEC registration fee) are estimates subject to future
contingencies.
<TABLE>
<CAPTION>
<S> <C> <C>
SEC registration fee . . . . . . . . . . . . . . . . . . $ 73,750
Trustees', Warrant Agent's, Preferred Stock Depository's
fees and expenses . . . . . . . . . . . . . . . . . . 20,000
Printing and engraving fees. . . . . . . . . . . . . . . 25,000
Legal fees and expenses. . . . . . . . . . . . . . . . . 85,000
Accounting fees and expenses . . . . . . . . . . . . . . 10,000
Transfer agent's and registrar's fees and expenses . . . 10,000
Rating agency fees . . . . . . . . . . . . . . . . . . . 35,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . 11,250
--------
Total. . . . . . . . . . . . . . . . . . . . . . . . . . $270,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Sections 561 through 571 of the Michigan Business
Corporation Act (the "MBCA"), directors and officers of a Michigan
corporation may be entitled to indemnification by the corporation
against judgments, expenses, fines, and amounts paid by the director
or officer in settlement of claims brought against them by third
persons or by or in the right of the corporation if those directors
and officers acted in good faith and in a manner reasonably believed
to be in, or not opposed to, the best interests of the corporation or
its shareholders.
Old Kent is obligated under its Restated Articles of
Incorporation to indemnify its directors and executive officers to the
full extent permitted under the MBCA. Old Kent may similarly
indemnify persons who are not directors or executive officers to the
extent authorized by Old Kent's Board of Directors.
The MBCA provides for indemnification of directors and officers
if they acted in good faith and in a manner they reasonably believed
to be in or not opposed to the best interests of Old Kent or its
shareholders (and, if a criminal proceeding, if they had no reasonable
cause to believe their conduct was unlawful) against: (a) expenses
(including attorneys' fees), judgments, penalties, fines and amounts
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paid in settlement actually and reasonably incurred in connection with
any threatened, pending or completed action, suit, or proceeding
(other than an action by or in the right of Old Kent) arising out of a
position with Old Kent (or with some other entity at Old Kent's
request); and (b) expenses (including attorneys' fees) and amounts
paid in settlement actually and reasonably incurred in connection with
any threatened, pending or completed action, suit or proceeding by or
in the right of Old Kent, unless the director or officer is found
liable to Old Kent, provided that an appropriate court could determine
that he or she is nevertheless fairly and reasonably entitled to
indemnity for reasonable expenses incurred. The MBCA requires
indemnification for expenses to the extent that a director or officer
is successful in defending against any such action, suit, or
proceeding.
The MBCA generally requires that the indemnification provided for
in (a) and (b) above be made only on a determination that the director
or officer met the applicable standard of conduct by a majority vote
of a quorum of the board of directors who were not parties or
threatened to be made parties to the action, suit or proceeding, by a
majority vote of a committee of not less than two disinterested
directors, by independent legal counsel, by all independent directors
not parties or threatened to be made parties to the action, suit or
proceeding, or by the shareholders. If the articles of incorporation
include a provision eliminating or limiting the liability of a
director, however, a corporation may indemnify a director for certain
expenses and liabilities without a determination that the director met
the applicable standards of conducts, unless the director received a
financial benefit to which he or she was not entitled, intentionally
inflicted harm on the corporation or its shareholders, violated
Section 551 of the MBCA, or intentionally committed a criminal act.
In connection with an action by or in the right of the corporation,
such indemnification may be for expenses (including attorneys' fees)
actually and reasonably incurred. In connection with an action, suit,
or proceeding other than an action, suit, or proceeding by or in the
right of the corporation, such indemnification may be for expenses
(including attorneys' fees) actually and reasonably incurred, and for
judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred.
In certain circumstances, the MBCA further permits advances to
cover such expenses before a final determination that indemnification
is permissible or required, upon receipt of a written affirmation by
the director or officer of his or her good faith belief that he or she
has met the applicable standard of conduct and an undertaking, which
need not be secured and which may be accepted without reference to the
financial ability of the person to make repayment, by or on behalf of
the director or officer to repay such amounts if it shall ultimately
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be determined that he or she has not met the applicable standard of
conduct. If a provision in the articles of incorporation or bylaws, a
resolution of the board or shareholders, or an agreement makes
indemnification mandatory, then the advancement of expenses is also
mandatory, unless the provision, resolution or agreement specifically
provides otherwise.
Indemnification under the MBCA is not exclusive of other rights
to indemnification to which a person may be entitled under Old Kent's
Restated Articles of Incorporation, Bylaws, or a contractual
agreement. However, the total amount of expenses advanced or
indemnified from all sources may not exceed the amount of actual
expenses incurred by the person seeking indemnification or advancement
of expenses. The indemnification provided for under the MBCA
continues as to a person who ceases to be a director or executive
officer.
The MBCA permits Old Kent to purchase insurance on behalf of its
directors and officers against liabilities arising out of their
positions with Old Kent, whether or not such liabilities would be
within the above indemnification provisions. Pursuant to this
authority, Old Kent maintains such insurance on behalf of its
directors and officers.
Old Kent has entered into indemnity agreements with each of its
directors. The agreements provide that Old Kent will indemnify the
director, subject to certain limitations, for expenses and costs,
including the satisfaction of a judgment, fine or penalty incurred in,
or in any amount paid in settlement of, any proceeding, including a
proceeding brought by or in the name of Old Kent (such as a
shareholder derivative suit), brought by reason of the fact that the
indemnitee was serving as a director, officer, employee, agent or
fiduciary of Old Kent or by reason of any action taken by the
indemnitee while serving as a director, officer, employee, agent, or
fiduciary of Old Kent, or by reason of the fact that the indemnitee
was serving at the request of Old Kent in a similar capacity with
another entity, if such expenses and costs may be indemnified under
the MBCA. In accordance with Old Kent's Restated Articles and Bylaws,
the agreements are designed to provide the maximum protection allowed
under federal and Michigan law. Indemnification is dependent upon the
director meeting the applicable standards of conduct set forth in the
indemnity agreements.
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ITEM 16. EXHIBITS.
EXHIBIT NO. EXHIBIT
__________ ________
1.1 FORM OF UNDERWRITING AGREEMENT - COMMON STOCK.
1.2 FORM OF UNDERWRITING AGREEMENT - PREFERRED STOCK.
1.3 FORM OF UNDERWRITING AGREEMENT - WARRANTS.
1.4 FORM OF UNDERWRITING AGREEMENT - DEBT SECURITIES.
3.1 RESTATED ARTICLES OF INCORPORATION. Incorporated by
reference to Exhibit 3.1 to Old Kent's Registration
Statement on Form S-4 (No. 333-56209) filed June 5,
1998.
3.2 BYLAWS. Incorporated by reference to Exhibit 3(b) to
Old Kent's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1997.
4.1 RESTATED ARTICLES OF INCORPORATION. See Exhibit 3.1.
4.2 BYLAWS. See Exhibit 3.2.
4.3 RIGHTS AGREEMENT. Incorporated by reference to Old
Kent's Form 8-A Registration Statement filed January
21, 1997.
4.4 SPECIMEN CERTIFICATE REPRESENTING COMMON STOCK.
4.5 CERTIFICATE OF DESIGNATIONS WITH RESPECT TO SERIES C
PREFERRED STOCK. Incorporated by reference to Exhibit
4.3 to Old Kent's Form 8-K filed March 5, 1997.
4.6 FORM OF SPECIMEN CERTIFICATE REPRESENTING PREFERRED
STOCK.<F*>
4.7 FORM OF DEPOSIT AGREEMENT.
4.8 FORM OF SPECIMEN DEPOSITARY RECEIPT. Filed by
reference to Exhibit A to Exhibit 4.7.
4.9 FORM OF SENIOR INDENTURE.
4.10 SENIOR DEBT SECURITY. Filed by reference to Article
Two of Exhibit 4.9.
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<PAGE>
4.11 FORM OF SUBORDINATED INDENTURE.
4.12 FORM OF SUBORDINATED DEBT SECURITY. Filed by reference
to Article Two of Exhibit 4.11.
4.13 FORM OF SECURITIES WARRANT AGREEMENT.
4.14 FORM OF SECURITIES WARRANT CERTIFICATE. Filed by
reference to Exhibit A to Exhibit 4.13.
5.1 OPINION OF WARNER NORCROSS & JUDD LLP.
12.1 STATEMENT REGARDING COMPUTATION OF RATIO OF EARNINGS TO
FIXED CHARGES.
23.1 CONSENT OF WARNER NORCROSS & JUDD LLP. Filed by
reference to Exhibit 5.1.
23.2 CONSENT OF ARTHUR ANDERSEN LLP.
24.1 POWERS OF ATTORNEY.
25.1 T-1 STATEMENT OF ELIGIBILITY AND QUALIFICATION WITH
RESPECT TO SENIOR INDENTURE.<F*>
25.2 T-1 STATEMENT OF ELIGIBILITY AND QUALIFICATION WITH
RESPECT TO SUBORDINATED INDENTURE.<F*>
99.1 FORM OF PROSPECTUS SUPPLEMENT (SUBORDINATED DEBT).
[FN]
____________________________
<F*> To be filed by amendment or as an exhibit to a document to be
incorporated by reference herein in connection with an offering
of the offered securities.
</FN>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933.
-52-
<PAGE>
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in the volume
of securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high and
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement will be deemed
to be a new registration statement relating to the securities offered
-53-
<PAGE>
therein, and the offering of such securities at that time will be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification
by it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the
form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the
time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering
thereof.
(e) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the
trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with rules and regulations prescribed by
the Commission under Section 305(b)(2) of the Act.
-54-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Grand Rapids,
State of Michigan, on August 13, 1998.
OLD KENT FINANCIAL CORPORATION
By /s/Albert T. Potas
Albert T. Potas
Its Senior Vice President and
Controller
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
August 13, 1998 * /s/Richard L. Antonini
Richard L. Antonini
Director
August 13, 1998 */s/John D. Boyles
John D. Boyles
Director
August 13, 1998 */s/William P. Crawford
William P. Crawford
Director
August 13, 1998 */s/Richard M. DeVos, Jr.
Richard M. DeVos, Jr.
Director
August 13, 1998 */s/William G. Gonzalez
William G. Gonzalez
Director
August 13, 1998 */s/James P. Hackett
James P. Hackett
Director
-55-
<PAGE>
August 13, 1998 */s/Erina Hanka
Erina Hanka
Director
August 13, 1998 */s/Earl D. Holton
Earl D. Holton
Director
August 13, 1998 */s/Michael J. Jandernoa
Michael J. Jandernoa
Director
August 13, 1998 */s/Kevin T. Kabat
Kevin T. Kabat
Vice Chairman of the Board and
Director
August 13, 1998 */s/Fred P. Keller
Fred P. Keller
Director
August 13, 1998 */s/John P. Keller
John P. Keller
Director
August 13, 1998 */s/Hendrik G. Meijer
Hendrik G. Meijer
Director
August 13, 1998 */s/Percy A. Pierre
Percy A. Pierre
Director
August 13, 1998 */s/Marilyn J. Schlack
Marilyn J. Schlack
Director
August 13, 1998 */s/Peter F. Secchia
Peter F. Secchia
Director
August 13, 1998 */s/David J. Wagner
David J. Wagner
Chairman of the Board, President,
Chief Executive Officer, and
Director (Principal Executive
Officer)
-56-
<PAGE>
August 13, 1998 */s/Margaret Sellers Walker
Margaret Sellers Walker
Director
August 13, 1998 */s/Robert H. Warrington
Robert H. Warrington
Vice Chairman of the Board, Chief
Financial Officer, and Director
(Principal Financial and Accounting
Officer)
August 13, 1998 *By /s/Albert T. Potas
Albert T. Potas
Attorney-in-Fact
-57-
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
__________ ________
1.1 FORM OF UNDERWRITING AGREEMENT - COMMON STOCK.
1.2 FORM OF UNDERWRITING AGREEMENT - PREFERRED STOCK.
1.3 FORM OF UNDERWRITING AGREEMENT - WARRANTS.
1.4 FORM OF UNDERWRITING AGREEMENT - DEBT SECURITIES.
3.1 RESTATED ARTICLES OF INCORPORATION. Incorporated by
reference to Exhibit 3.1 to Old Kent's Registration
Statement on Form S-4 (No. 333-56209) filed June 5,
1998.
3.2 BYLAWS. Incorporated by reference to Exhibit 3(b) to
Old Kent's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1997.
4.1 RESTATED ARTICLES OF INCORPORATION. See Exhibit 3.1.
4.2 BYLAWS. See Exhibit 3.2.
4.3 RIGHTS AGREEMENT. Incorporated by reference to Old
Kent's Form 8-A Registration Statement filed January
21, 1997.
4.4 SPECIMEN CERTIFICATE REPRESENTING COMMON STOCK.
4.5 CERTIFICATE OF DESIGNATIONS WITH RESPECT TO SERIES C
PREFERRED STOCK. Incorporated by reference to Exhibit
4.3 to Old Kent's Form 8-K filed March 5, 1997.
4.6 FORM OF SPECIMEN CERTIFICATE REPRESENTING PREFERRED
STOCK.<F*>
4.7 FORM OF DEPOSIT AGREEMENT.
4.8 FORM OF SPECIMEN DEPOSITARY RECEIPT. Filed by
reference to Exhibit A to Exhibit 4.7.
4.9 FORM OF SENIOR INDENTURE.
4.10 SENIOR DEBT SECURITY. Filed by reference to Article
Two of Exhibit 4.9.
<PAGE>
4.11 FORM OF SUBORDINATED INDENTURE.
4.12 FORM OF SUBORDINATED DEBT SECURITY. Filed by reference
to Article Two of Exhibit 4.11.
4.13 FORM OF SECURITIES WARRANT AGREEMENT.
4.14 FORM OF SECURITIES WARRANT CERTIFICATE. Filed by
reference to Exhibit A to Exhibit 4.13.
5.1 OPINION OF WARNER NORCROSS & JUDD LLP.
12.1 STATEMENT REGARDING COMPUTATION OF RATIO OF EARNINGS TO
FIXED CHARGES.
23.1 CONSENT OF WARNER NORCROSS & JUDD LLP. Filed by
reference to Exhibit 5.1.
23.2 CONSENT OF ARTHUR ANDERSEN LLP.
24.1 POWERS OF ATTORNEY.
25.1 T-1 STATEMENT OF ELIGIBILITY AND QUALIFICATION WITH
RESPECT TO SENIOR INDENTURE.<F*>
25.2 T-1 STATEMENT OF ELIGIBILITY AND QUALIFICATION WITH
RESPECT TO SUBORDINATED INDENTURE.<F*>
99.1 FORM OF PROSPECTUS SUPPLEMENT (SUBORDINATED DEBT).
[FN]
____________________________
<F*> To be filed by amendment or as an exhibit to a document to be
incorporated by reference herein in connection with an offering
of the offered securities.
</FN>
<PAGE>
EXHIBIT 1.1
[Common Stock]
OLD KENT FINANCIAL CORPORATION
UNDERWRITING AGREEMENT
New York, New York
____________, 199_
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Old Kent Financial Corporation, a Michigan corporation (the
"Company"), proposes to issue and sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), __________ shares (the "Initial
Shares") of the Company's common stock (the "Common Stock"). Such Initial
Shares are to be sold to each Underwriter, acting severally and not
jointly, in such amounts as are listed in Schedule II opposite the name of
each Underwriter.
The Company also grants to the Underwriters, severally and not
jointly, the option described in Section 2(c) to purchase up to _____
additional shares (the "Option Shares"; together with the Initial Shares,
the "Shares") of Common Stock to cover over-allotments. The Common Stock
is more fully described in the Final Prospectus, referred to below. If the
firm or firms listed in Schedule II include only the firm or firms listed
in Schedule I, then the terms "Underwriters" and "Representatives", as used
herein, each shall be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter, as of the date of this
Agreement and as of the date of the Pricing Agreement (such latter date
being hereinafter referred to as the "Representation Date") that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement on such Form S-3 (the file
number of which is set forth in Schedule I), which registration
statement has become effective, for the registration under the
Act of the Shares. Such registration statement, as amended at
<PAGE>
the date of this Agreement, meets the requirements set forth in
Rule 415(a)(1) under the Act and complies in all other material
respects with Rule 415. The Company proposes to file with the
Commission pursuant to Rule 424 or Rule 434 under the Act a
supplement to the form of prospectus included in such
registration statement relating to the Shares and the plan of
distribution thereof and has previously advised you of all
further information (financial and other) with respect to the
Company to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date of this
Agreement, is hereinafter called the "Registration Statement";
such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the
form in which it shall be filed with the Commission pursuant to
Rule 424 or Rule 434 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus that has heretofore been
filed pursuant to Rule 424 hereinafter is called the "Preliminary
Final Prospectus." Any reference in this Agreement to the
Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 that were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
on or before the date of this Agreement, or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference in this
Agreement to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, and
the Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document under
the Exchange Act after the date of this Agreement, or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) As of the date of this Agreement, when the Final
Prospectus is first filed pursuant to Rule 424 or Rule 434 under
the Act, when, prior to the Closing Date (as defined below), any
amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by reference
in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date
(as defined below), (i) the Registration Statement as amended as
of any such time, and the Final Prospectus, as amended or
supplemented as of any such time, will comply in all material
respects with the applicable requirements of the Act, and the
-2-
<PAGE>
Exchange Act and the respective rules thereunder, (ii) the
Registration Statement, as amended as of any such time, will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and (iii)
the Final Prospectus, as amended or supplemented as of any such
time, will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement or the Final Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation of the
Registration Statement and the Final Prospectus. It is agreed
that each Underwriter and you, as Representative, have furnished
to the Company in writing for such use the statements with
respect to Underwriters in response to Item E of Form S-1, any
statements relating to the terms of the offering by the
Underwriters on the cover page of the Final Prospectus, and all
statements under the caption "Underwriting" in the Final
Prospectus.
(c) The Company is a duly organized and validly existing
corporation in good standing under the laws of the state of
Michigan, has the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended. Old Kent
Bank (the "Principal Subsidiary Bank") is a banking organization
formed under the laws of the state of Michigan and authorized
thereunder to transact business.
(d) Neither the Company nor the Principal Subsidiary Bank
is required to be qualified or licensed to do business as a
foreign corporation in any jurisdiction where it is not so
qualified or licensed, except where the failure to be so
qualified would not reasonably be expected to have a material
adverse effect on the business or properties of the Company and
its subsidiaries on a consolidated basis.
(e) All the outstanding shares of capital stock of the
Company and the Principal Subsidiary Bank have been duly and
validly authorized and issued and are fully paid and (except as
provided in M.C.L. <Section> 450.1551 and the Michigan Banking
-3-
<PAGE>
Code of 1969, as amended) nonassessable. Except as otherwise set
forth in the Final Prospectus, all outstanding shares of capital
stock of the Principal Subsidiary Bank are owned, directly or
indirectly, by the Company, free and clear of any perfected
security interest and, subject to the provisions of and the
Michigan Banking Code of 1969, as amended, any other security
interests, claims, liens or encumbrances.
(f) the Shares conform in all material respects to the
description thereof contained in the Final Prospectus;
(g) There is no pending or, to the Company's knowledge,
threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement that is
not adequately disclosed in the Final Prospectus. There is no
franchise, contract or other document of a character required to
be described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit, that is not described or filed as
required.
(h) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws affecting
the rights of creditors now or hereafter in effect, and to
equitable principles that may limit the right to specific
enforcement of remedies, and except insofar as the enforceability
of the indemnity and contribution provisions contained in this
Agreement may be limited by federal and state securities laws,
and further subject to bank regulatory powers and to the
application of principles of public policy).
(i) No consent, approval, authorization or order of any
court or governmental agency or body is required on behalf of the
Company for the consummation of the transactions contemplated,
except such as have been obtained under the Act and such as may
be required by the National Association of Securities Dealers,
Inc. ("NASD") or under the blue sky or insurance laws of any
jurisdiction in connection with the purchase and distribution of
the Shares by the Underwriters and such other approvals as have
been obtained.
(j) Neither the issue and sale of the Shares, nor the
consummation of any other of the transactions contemplated in
-4-
<PAGE>
this Agreement nor the fulfillment of the terms of this
Agreement, by the Company, will conflict with, result in a breach
of, or constitute a default under the Restated Articles of
Incorporation or Restated Bylaws of the Company or the terms of
any material indenture or other agreement to which the Company or
the Principal Subsidiary Bank is a party or bound, or any order
or regulation applicable to the Company or the Principal
Subsidiary Bank of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over
the Company or any of its affiliates.
(k) The financial statements (including the related notes
and supporting schedules) included in the Final Prospectus
present fairly in all material respects the financial condition
and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and (except
as indicated therein) have been prepared in conformity with
generally accepted accounting principles applied in a consistent
basis throughout the periods involved.
2. Purchase and Sale. (a) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company the respective
number of Initial Shares set forth opposite such Underwriter's name in
Schedule II.
(b) The initial public offering price and the purchase price of
the Initial Shares shall be set forth in a separate written instrument (the
"Pricing Agreement") signed by the Representatives and the Company, the
form of which is attached to this Agreement as Schedule III. From and
after the execution and delivery of the Pricing Agreement, this Agreement
shall be deemed to include the Pricing Agreement. The purchase price per
share to be paid by the several Underwriters for the Initial Shares shall
be an amount equal to the initial public offering price, less an amount per
share to be determined by agreement among the Representatives and the
Company.
(c) In addition, on the basis of the representations and
warranties contained in this Agreement, and subject to the terms and
conditions set forth in this Agreement, the Company grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional
_______ Option Shares at the same price per share determined as provided
above for the Initial Shares. The option hereby granted will expire 30
days after the date of the Pricing Agreement, and may be exercised, in
whole or in part (but not more than once), only for the purpose of covering
over-allotments upon notice by the Representatives to the Company setting
forth the number of Option Shares as to which the several Underwriters are
-5-
<PAGE>
exercising the option, and the time and date of payment and delivery
thereof. Such time and date of Delivery (the "Date of Delivery") shall be
determined by the Representatives but shall not be later than seven full
business days after the exercise of such option and not in any event prior
to the Closing Date (as defined below). If the option is exercised as to
all or any portion of the Option Shares, the Option Shares as to which the
option is exercised shall be purchased by the Underwriters severally and
not jointly, in proportion to, as nearly as practicable, their respective
Initial Shares underwriting obligations as set forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for the Initial
Shares shall be made on the date and at the time specified in the Pricing
Agreement, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such
date and time of delivery and payment for the Initial Shares being herein
called the "Closing Date"). Delivery of the Initial Shares shall be made
to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof in the manner set forth in
Schedule I. Unless otherwise agreed, certificates for the Initial Shares
shall be in the form set forth in Schedule I, and such certificates may be
deposited with The Depository Trust Company ("DTC") or a custodian for DTC
and registered in the name of Cede & Co., as nominee for DTC.
In addition, in the event that any or all of the Option Shares are
purchased by the Underwriters, delivery and payment for the Option Shares
shall be made at the office specified for delivery of the Initial Shares in
the Pricing Agreement, or at such other place as the Company and the
Representatives shall determine, on the Date of Delivery as specified in
the notice from the Representatives to the Company. Delivery of the Option
Shares shall be made to the Representatives against payment by the
Underwriters through the Representatives of the purchase price thereof to
or upon the order of the Company in the manner set forth in Schedule I.
Unless otherwise agreed, certificates for the Option Shares shall be in the
form set forth in Schedule I, and such certificates shall be registered in
such names and in such denominations as the Representatives may request not
less than three full business days in advance of the Date of Delivery.
4. Agreements. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the Shares,
the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the
Basic Prospectus unless the Company has furnished you a copy for
your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject
to the foregoing sentence, the Company will cause the Final
-6-
<PAGE>
Prospectus to be filed with the Commission pursuant to Rule 424
or Rule 434 via the Electronic Data Gathering, Analysis and
Retrieval System. The Company will advise the Representatives
promptly (i) when the Final Prospectus shall have been filed with
the Commission pursuant to Rule 424 or Rule 434, (ii) when any
amendment to the Registration Statement relating to the Shares
shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or
amendment of or supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Shares is required to be delivered by an Underwriter or dealer
under the Act, any event occurs as a result of which, in the
judgment of the Company or in the opinion of counsel for the
Underwriters, the Final Prospectus as then amended or
supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend or
supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 4, an
amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance.
(c) The Company will make generally available to its
security holders and to the Representatives as soon as
practicable, but not later than 90 days after the close of the
period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the regulations under the Act)
covering a 12 month period beginning not later than the first day
of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration
Statement.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
-7-
<PAGE>
Registration Statement (including exhibits thereto) and each
amendment thereto that shall become effective on or prior to the
Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies
of any Preliminary Final Prospectus and the Final Prospectus and
any amendments thereof and supplements thereto as the
Representatives may reasonably request. Except as otherwise
provided herein, the Company will pay the expenses of printing
all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Shares for sale under the laws of such jurisdictions as the
Representatives may reasonably designate, will use all reasonable
efforts to maintain such qualifications in effect so long as
required for the distribution of the Shares and will arrange for
the determination of the legality of the Shares for purchase by
institutional investors; provided, however, that the Company
shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any
action that would subject it to general or unlimited service of
process of any jurisdiction where it is not now so subject.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives,
offer or sell, or announce the offering of, any securities
covered by the Registration Statement or by any other
registration statement filed under the Act; provided, however,
the Company may, at any time, offer or sell or announce the
offering of any securities (A) covered by a registration
statement on Form S-8, (B) covered by a registration statement on
Form S-3 and pursuant to which the Company issues securities for
its Dividend Reinvestment Plan, or (C) reserved for such
issuance, with such reservation referred to in the Final
Prospectus.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Shares shall be subject to
the accuracy of the representations and warranties on the part of the
Company contained in this Agreement as of the date hereof, as of the date
of the effectiveness of any amendment to the Registration Statement filed
prior to the Closing Date (including the filing of any document
incorporated by reference therein) and as of the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
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been issued and no proceedings for that purpose shall have been
instituted or threatened; and the Final Prospectus shall have
been filed or mailed for filing with the Commission within the
time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives
the opinion of Warner Norcross & Judd LLP, counsel for the
Company, dated the Closing Date, to the effect of paragraphs (i)
through (xi) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of
the state of Michigan, has the corporate power and
authority to own its properties and conduct its
business as described in the Final Prospectus, and is
duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended; the
Principal Subsidiary Bank is a banking organization
organized under the laws of the state of Michigan and
authorized thereunder to transact business;
(ii) except for those jurisdictions specifically
enumerated in such opinion, neither the Company nor the
Principal Subsidiary Bank is required to be qualified
or licensed to do business as a foreign corporation in
any jurisdiction where it is not so qualified or
licensed, except where the failure to be so qualified
or licensed would not reasonably be expected to have a
material adverse effect on the business or properties
of the Company and its subsidiaries on a consolidated
basis;
(iii) all the outstanding shares of capital
stock of the Company and the Principal Subsidiary Bank
have been duly and validly authorized and issued and
are fully paid and (except as provided in M.C.L.
<Section> 450.1551 and the Michigan Banking Code of
1969, as amended) nonassessable, and, except as
otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of the Principal
Subsidiary Bank are owned, directly or indirectly, by
the Company free and clear of any perfected security
interest and, to the knowledge of such counsel, any
other security interests, claims, liens or
encumbrances;
(iv) the Securities conform as to legal matters in
all material respects to the description thereof
contained in the Final Prospectus;
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(v) if the Securities are to be listed on [the
New York Stock Exchange][The Nasdaq Stock Market],
authorization therefor has been given, subject to
official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required
supporting documents with respect to the Securities
with [the New York Stock Exchange][The Nasdaq Stock
Market] and such counsel has no reason to believe that
the Securities will not be authorized for listing,
subject to official notice of issuance and evidence of
satisfactory distribution;
(vi) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before
any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed
in the Registration Statement that is not adequately
disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character
required to be described in the Registration Statement
or Final Prospectus, or to be filed as an exhibit, that
is not described or filed as required;
(vii) the Registration Statement has become
effective under the Act; to the knowledge of such
counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final
Prospectus and each amendment thereof or supplement
thereto (other than the financial statements and other
financial and statistical information contained therein
or incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the applicable requirements
of the Act and the Exchange Act and the respective
rules thereunder;
(viii) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid
and binding agreement of the Company (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights
of creditors now or hereafter in effect, and to
equitable principles that may limit the right to
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specific enforcement of remedies, and except insofar as
the enforceability of the indemnity and contribution
provisions contained in this Agreement may be limited
by federal and state securities laws, and further
subject to bank regulatory powers and to the
application of principles of public policy);
(ix) no consent, approval, authorization or order
of any court or governmental agency or body is required
on behalf of the Company for the consummation of the
transactions contemplated in this Agreement, except
such as have been obtained under the Act and such as
may be required by the NASD or under the blue sky or
insurance laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in
such opinion) as have been obtained;
(x) neither the issue and sale of the Securities,
nor the consummation of any other of the transactions
in this Agreement contemplated nor the fulfillment of
the terms of this Agreement will conflict with, result
in a breach of, or constitute a default under the
Restated Articles of Incorporation or Restated Bylaws
of the Company or, to the knowledge of such counsel,
the terms of any material indenture or other material
agreement or instrument known to such counsel and to
which the Company or the Principal Subsidiary Bank is a
party or bound, or any order or regulation known to
such counsel to be applicable to the Company or the
Principal Subsidiary Bank of any court, regulatory
body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any
of its affiliates; and
(xi) to the knowledge of such counsel, each holder
of securities of the Company having rights to the
registration of such securities under the Registration
Statement has waived such rights or such rights have
expired by reason of lapse of time following
notification of the Company's intention to file the
Registration Statement.
In rendering such opinion, but without opining in connection
therewith, such counsel shall also state that, although it has
not independently verified, is not passing upon and assumes no
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, it has no
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<PAGE>
reason to believe that the Registration Statement or any
amendment thereof at the time it became effective contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading, or that the Final Prospectus, as
amended or supplemented, contains any untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the state of Michigan or the United States, to the
extent deemed proper by such counsel and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are reasonably satisfactory to
counsel for the Underwriters; and (B) as to matters of fact, to
the extent deemed proper by such counsel, on certificates of
responsible officers of the Company and its subsidiaries and
public officials. In rendering such opinion with respect to the
matters covered in clause (ix), such counsel may state that its
opinion and belief are based upon the procedures specified in
such opinion, but are without independent check or verification.
(c) The Representatives shall have received from
___________, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the matters
referred to in clauses (iv), (vii), (viii), and (ix) of Paragraph
5(b). In rendering such opinion, but without opining in
connection therewith, such counsel shall also state that,
although it has not independently verified, is not passing upon
and assumes no responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement, it has no reason to believe that the Registration
Statement or any amendment thereof at the time it became
effective contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or that
the Final Prospectus, as amended or supplemented, contains any
untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters
involving the application of laws of any jurisdiction other than
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<PAGE>
the state of __________ or the United States, to the extent
deemed proper by such counsel and specified in such opinion, upon
the opinion of other counsel of good standing believed to be
reliable and who are reasonably satisfactory to counsel for the
Company.
(d) The Company shall have furnished to the Representatives
a certificate of the Company, signed by a Senior Vice President
and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement,
the Final Prospectus and this Agreement and that to the best of
their knowledge:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or, to the
best of the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been
no material adverse change in the financial condition,
earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(e) At the Closing Date, Arthur Andersen LLP shall have
furnished to the Representatives (and also addressed to the
Company's Board of Directors) a letter or letters (which letter
may refer to letters previously delivered to one or more of the
Representatives), dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that
the response, if any, to Item 10 of the Registration Statement is
correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the
meaning of the Act and the applicable published rules and
regulations thereunder.
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<PAGE>
(ii) In their opinion, the consolidated financial
statements of the Company audited by them and included or
incorporated by reference in the Registration Statement and
Final Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act and
the related published rules and regulations thereunder.
(iii) They performed review procedures (but not an
audit in accordance with generally accepted auditing
standards) consisting of:
(A) With respect to the period from the date of
the most recent audited balance sheet included or
incorporated by reference in the Final Prospectus
through a specified date not more than five business
days prior to the date of delivery of such letter:
reading the minutes of the meetings of the
shareholders, the board of directors, executive
committee and audit committee of the Company and the
Principal Bank Subsidiary as set forth in the minute
books for such period,
(B) With respect to the three, six, or nine month
period, as the case may be, ended on the date of the
most recent unaudited condensed consolidated interim
balance sheet of the Company included or incorporated
by reference in the Registration Statement and Final
Prospectus, and with respect to the same three, six, or
nine month period of the previous year:
(I) Performing the procedures specified by
the American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed
consolidated interim financial statements of the
Company included or incorporated by reference in
the Registration Statement and Final Prospectus,
(II) Making inquiries of certain officials of the
Company who have responsibility for financial and
accounting matters whether such unaudited condensed
consolidated financial statements comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published rules
and regulations,
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<PAGE>
(C) With respect to the period from the date of
the most recent unaudited condensed consolidated
interim balance sheet of the Company included or
incorporated by reference in the Final Prospectus to
the date of the latest available interim financial
data:
(I) Reading the unaudited condensed consolidated
financial statements of the Company for such period, and
(II) Inquiring of certain officials of the Company
who have responsibility for financial and accounting
matters whether the unaudited condensed consolidated
financial statements referred to in (C)(I) immediately
above are stated on a basis substantially consistent with
that of the audited consolidated financial statements
included or incorporated by reference in the
Final Prospectus.
(iv) Based on the procedures described in (iii)
immediately above, nothing came to their attention as a
result of the foregoing procedures that caused them to
believe that:
(A) The unaudited condensed consolidated
financial statements, included or incorporated by
reference in the Registration Statement and Final
Prospectus, do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder,
(B) Any material modifications should be made to
the unaudited condensed consolidated financial
statements described in (C) immediately above, included or
incorporated by reference in Final Prospectus, for them to be
in conformity with generally accepted accounting principles,
and
(C) As of the date of the latest available interim
financial data and at the specified date not more than
five business days prior to the date of delivery of
such letter, there was any change in the capital stock,
increase in long-term debt, or decrease in consolidated
net assets or shareholders' equity of the
Company (on a consolidated basis) as compared with the
amounts shown in the unaudited condensed consolidated
financial statements included or incorporated
by reference in the Final Prospectus.
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<PAGE>
(v) The letter shall also state that Arthur Andersen
LLP has carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts,
percentages and financial information that are included or
incorporated by reference in the Registration Statement and
Final Prospectus and that are specified by the
Representatives and agreed to by Arthur Andersen LLP, and
has found such amounts, percentages and financial
information to be in agreement with the relevant accounting,
financial and other records of the Company and its
subsidiaries identified in such letter.
In addition, at the time this Agreement is executed, Arthur
Andersen LLP shall have furnished to the Representatives a
letter or letters, dated the date of this Agreement, in form
and substance satisfactory to the Representatives, to the
effect set forth in this paragraph (e) and in Schedule I.
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e)
of this Section 5, or (ii) any change, or any development
involving a prospective change, in or affecting the earnings,
business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii)
above, is, in the reasonable judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to
proceed with the offering or the delivery of the Securities as
contemplated by the Registration Statement and the Final
Prospectus.
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in
this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives, this Agreement
and all obligations of the Underwriters hereunder may be canceled at, or at
any time prior to, the Closing Date by the Representatives.
6. Payment of Expenses. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (i)
the printing and filing of the Registration Statement as originally filed
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<PAGE>
and of each amendment thereto, (ii) the copying of this Agreement and the
Pricing Agreement, (iii) the preparation, issuance and delivery of the
certificates for the Shares to the Underwriters, including capital duties,
stamp duties and stock transfer taxes, if any, payable upon issuance of any
of the Shares, the sale of the Shares to the Underwriters and the fees and
expenses of the transfer agent for the Shares, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the
qualification of the Shares under state securities laws in accordance with
the provisions of Section 4(e), including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the "Blue Sky Survey"
not to exceed $_____, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each
amendment thereto, of the preliminary prospectuses, and of the Prospectuses
and any amendments or supplements thereto, (vii) the printing and delivery
to the Underwriters of copies of the Blue Sky Survey, and (viii) the fee of
the National Association of Securities Dealers, Inc. and, if applicable,
[the New York Stock Exchange] [The Nasdaq Stock Market].
If the sale of the Shares provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 5 is not satisfied or because of any refusal, inability or failure
on the part of the Company to perform any agreement herein or comply with
any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Shares.
7. Conditions to Purchase of Option Shares. In the event the
Underwriters exercise the option granted in Section 2(c) hereof to purchase
all or any portion of the Option Shares and the Date of Delivery determined
by the Representatives pursuant to Section 2 is later than the Closing
Date, the obligations of the several Underwriters to purchase and pay for
the Option Shares that they shall have respectively agreed to purchase
under this Agreement are subject to the accuracy of the representations and
warranties of the Company contained in this Agreement, to the performance
by the Company of its obligations under this Agreement and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened; and any required filing of the Final
Prospectus pursuant to Rule 424(b) or Rule 434 under the Act
shall have been made within the proper time period.
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<PAGE>
(b) At the Date of Delivery, the Representatives shall have
received, each dated the Date of Delivery and relating to the
Option Shares:
(i) the favorable opinion of Warner Norcross & Judd
LLP, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, to
the same effect as the opinion required by Section 5(b);
(ii) the favorable opinion of _______, counsel for the
Underwriters, to the same effect as the opinion required by
Section 5(c);
(iii) a certificate, of a Senior Vice President of
the Company and of the principal financial or accounting
officer of the Company with respect to the matters set forth
in Section 5(d); and
(iv) a letter from Arthur Andersen LLP, in form and
substance reasonably satisfactory to the Underwriters,
substantially the same in scope and substance as the letter
furnished to the Underwriters pursuant to Section 5(e)
except that the "specified date" in the letter furnished
pursuant to this Section 7(b)(v) shall be a date not more
than five days prior to the Date of Delivery.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives, this
Agreement and all obligations of the Underwriters hereunder may be canceled
at, or at any time prior to, the Date of Delivery by the Representatives.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any
amendment thereof, or arise out of or are based upon omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arise out of or
are based upon any untrue statement or alleged untrue statement of a
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<PAGE>
material fact contained in the Final Prospectus if used within the period
set forth in Section 4(d), or any amendment or supplement thereof, or arise
out of or are based upon any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
in connection with the preparation thereof, and (ii) such indemnity with
respect to the Basic Prospectus or any Preliminary Final Prospectus shall
not inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Shares that are the subject thereof if such person
did not receive a copy of the Final Prospectus (or the Final Prospectus as
amended or supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Shares to
such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in the Basic
Prospectus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. The Company acknowledges that the statements set
forth in the language on the cover page required by Item 509 of Regulation
S-K and under the heading "Underwriting" or "Plan of Distribution" in any
Preliminary Final Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Representatives, confirm that such statements
are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
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writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability that it may have
to any indemnified party otherwise than under this Section 8. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and, to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert
such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a), representing the
indemnified parties under subparagraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party; and except
that if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 8 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company on the grounds of policy
or otherwise, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same) to which the Company and one or more of the Underwriters may be
subject in such proportion so that the Underwriters are responsible for
that portion represented by the percentage that the underwriting discount
bears to the sum of such discount and the purchase price of the Shares
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specified in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (y) in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating to
the offering of the Shares) be responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such
Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of the Act shall have the
same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clause (y) of this
paragraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be made against
another party or parties under this paragraph (d), notify such party or
parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Shares agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations
under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions that the
amount of Shares set forth opposite their names in Schedule II bear to the
aggregate amount of Shares set forth opposite the names of all the
remaining Underwriters) the Shares that the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Shares that the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate amount of Shares set forth in Schedule II, the remaining
Underwriters shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the Shares, and if such nondefaulting
Underwriters do not purchase all the Shares, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the
event of a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding seven days,
as the Representatives shall determine in order that the required changes
in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if
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any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Shares, if prior to such
time (i) trading in securities generally on [the New York Stock
Exchange][The Nasdaq Stock Market] shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or Michigan banking
authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which
on the financial markets of the United States is such as to make it, in the
reasonable judgment of the Representatives, impracticable to market the
Shares.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Shares.
The provisions of Section 6 and 8 hereof and this Section 11 shall survive
the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I hereto, with a copy to: [______] or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at
111 Lyon Street NW, Grand Rapids, Michigan 49503, attention of the
Secretary, with a copy to each of: Warner Norcross & Judd LLP, 111 Lyon
Street NW, Suite 900, Grand Rapids, Michigan 49503, attention: Gordon R.
Lewis.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties and their respective successors and the officers
and directors and controlling persons referred to in Section 8, and no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York,
without giving effect to principles of conflict of laws.
-22-
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
OLD KENT FINANCIAL CORPORATION
By:
Its:
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
By: [Name of Representatives]
By:__________________________
For themselves and the other several Underwriters, if any, named in
Schedule II to the foregoing Agreement.
-23-
<PAGE>
SCHEDULE I
(Common Stock)
Underwriting Agreement dated ___________, 199_
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Shares:
Title:
Purchase price (include type of funds, if applicable): ____________ in
federal (same day) funds or wire transfer to an account previously
designated to the Representatives by the Company, or if agreed to by
the Representatives and the Company, by certified or official bank
check or checks.
Other provisions:
Closing Date, Time and Location: ____________________
Additional items to be covered by the letter from Arthur Andersen LLP
delivered pursuant to Section 5(e) at the time this Agreement is
executed:
<PAGE>
SCHEDULE II
(Common Stock)
Principal Amount of
Initial Shares to
Underwriters be Purchased
- ------------ ------------------
<PAGE>
SCHEDULE III
_________ Shares
OLD KENT FINANCIAL CORPORATION
PRICING AGREEMENT
Common Stock
New York, New York
__________ __, 199_
______________________,
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Underwriting Agreement, dated
_______________, 199_ (the "Underwriting Agreement"), relating to the
purchase by the several Underwriters named in Schedule I thereto, for whom
you are acting as representatives (the "Representatives"), of the above
shares of Common Stock (the "Initial Shares"), of Old Kent Finacial
Corporation (the "Company").
We confirm that the Closing Time (as defined in Section 2 of the
Underwriting Agreement) shall be at 10:30 A.M., New York City time, on
__________ __, 199_ at the offices of __________.
Pursuant to Section 2 of the Underwriting Agreement, the Company
agrees with each Underwriter as follows:
1. The initial public offering price per share for the Initial
Shares, determined as provided in said Section 2, shall be $__.__.
2. The purchase price per share for the Initial Shares to be paid by
the several Underwriters shall be $__.__, being an amount equal to the
initial public offering price set forth above less $_.__ per share.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
<PAGE>
whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Company in accordance
with its terms.
Very truly yours,
OLD KENT FINANCIAL CORPORATION
By:_____________________________________
Its __________________________________
CONFIRMED AND ACCEPTED:
as of the date first above written:
By: ___________________________
By:____________________________
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
<PAGE>
SCHEDULE A
[Underwriters]
<PAGE>
EXHIBIT 1.2
[Preferred Stock]
OLD KENT FINANCIAL CORPORATION
UNDERWRITING AGREEMENT
New York, New York
____________, 199_
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Old Kent Financial Corporation, a Michigan corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II
hereto (the "Underwriters"), for whom you are acting as representatives
(the "Representatives"), __________ shares (the "Initial Shares") of the
Company's preferred stock (the "Preferred Stock"). The Company also grants
to the Underwriters, severally and not jointly, the option described in
Section 2(c) to purchase up to _____ additional shares (the "Option
Shares") of Preferred Stock to cover over-allotments.
The Company may elect to offer fractional interests in shares of
Preferred Stock, in which event the Company will provide for the issuance
by a Depositary of receipts evidencing depositary shares that will
represent such fractional interests ("Depositary Shares"). The shares of
Preferred Stock involved in any such offering are hereinafter referred to
as the "Securities" and, where appropriate herein, reference to the
Securities includes the Depositary Shares. Such Securities are to be sold
to each Underwriter, acting severally and not jointly, in such amounts as
are listed in Schedule II opposite the name of each Underwriter. The
Securities are more fully described in the Final Prospectus, referred to
below. If the firm or firms listed in Schedule II include only the firm or
firms listed in Schedule I, then the terms "Underwriters" and
"Representatives", as used herein, each shall be deemed to refer to such
firm or firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that as of the date of this
Agreement:
<PAGE>
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement on such Form S-3 (the file
number of which is set forth in Schedule I), which registration
statement has become effective, for the registration under the
Act of the Securities. Such registration statement, as amended at
the date of this Agreement, meets the requirements set forth in
Rule 415(a)(1) under the Act and complies in all other material
respects with Rule 415. The Company proposes to file with the
Commission pursuant to Rule 424 or Rule 434 under the Act a
supplement to the form of prospectus included in such
registration statement relating to the Securities and the plan of
distribution thereof and has previously advised you of all
further information (financial and other) with respect to the
Company to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date of this
Agreement, is hereinafter called the "Registration Statement";
such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the
form in which it shall be filed with the Commission pursuant to
Rule 424 or Rule 434 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus that has heretofore been
filed pursuant to Rule 424 hereinafter is called the "Preliminary
Final Prospectus." Any reference in this Agreement to the
Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 that were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
on or before the date of this Agreement, or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference in this
Agreement to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, and
the Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document under
the Exchange Act after the date of this Agreement, or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) As of the date of this Agreement, when the Final
Prospectus is first filed pursuant to Rule 424 or Rule 434 under
the Act, when, prior to the Closing Date (as hereinafter
defined), any amendment to the Registration Statement becomes
-2-
<PAGE>
effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to
the Final Prospectus is filed with the Commission and at the
Closing Date (as defined below), (i) the Registration Statement
as amended as of any such time, and the Final Prospectus, as
amended or supplemented as of any such time, will comply in all
material respects with the applicable requirements of the Act,
and the Exchange Act and the respective rules thereunder, (ii)
the Registration Statement, as amended as of any such time, will
not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading,
and (iii) the Final Prospectus, as amended or supplemented as of
any such time, will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes
no representations or warranties as to the information contained
in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection with the
preparation of the Registration Statement and the Final
Prospectus. It is agreed that each Underwriter and you, as
Representative, have furnished to the Company in writing for such
use the statements with respect to Underwriters in response to
Item E of Form S-1, any statements relating to the terms of the
offering by the Underwriters on the cover page of the Final
Prospectus, and all statements under the caption "Underwriting"
in the Final Prospectus.
(c) The Company is a duly organized and validly existing
corporation in good standing under the laws of the state of
Michigan, has the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended; Old Kent
Bank (the "Principal Subsidiary Bank") is a banking organization
formed under the laws of the state of Michigan and authorized
thereunder to transact business.
(d) Neither the Company nor the Principal Subsidiary Bank
is required to be qualified or licensed to do business as a
foreign corporation in any jurisdiction where it is not so
qualified or licensed, except where the failure to be so
qualified would not reasonably be expected to have a material
-3-
<PAGE>
adverse effect on the business or properties of the Company and
its subsidiaries on a consolidated basis.
(e) All the outstanding shares of capital stock of the
Company and the Principal Subsidiary Bank have been duly and
validly authorized and issued and are fully paid and (except as
provided in M.C.L. <Section> 450.1551 and the Michigan Banking
Code of 1969, as amended) nonassessable. Except as otherwise set
forth in the Final Prospectus, all outstanding shares of capital
stock of the Principal Subsidiary Bank are owned, directly or
indirectly, by the Company, free and clear of any perfected
security interest and, subject to the provisions of and the
Michigan Banking Code of 1969, as amended, any other security
interests, claims, liens or encumbrances.
(f) The Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(g) There is no pending or, to the Company's knowledge,
threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement that is
not adequately disclosed in the Final Prospectus. There is no
franchise, contract or other document of a character required to
be described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit, that is not described or filed as
required.
(h) This Agreement and the Depository Agreement have been
duly authorized, executed and delivered by the Company and each
constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights of
creditors now or hereafter in effect, and to equitable principles
that may limit the right to specific enforcement of remedies, and
except insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may be
limited by federal and state securities laws, and further subject
to bank regulatory powers and to the application of principles of
public policy).
(i) No consent, approval, authorization or order of any
court or governmental agency or body is required on behalf of the
Company for the consummation of the transactions contemplated
herein, except such as have been obtained under the Act and such
-4-
<PAGE>
as may be required by the National Association of Securities
Dealers, Inc. ("NASD") or under the blue sky or insurance laws of
any jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters and such other approvals as
have been obtained.
(j) Neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms of this Agreement will conflict
with, result in a breach of, or constitute a default under the
Restated Articles of Incorporation or Restated Bylaws of the
Company or the terms of any material indenture or other agreement
to which the Company or the Principal Subsidiary Bank is a party
or bound, or any order or regulation applicable to the Company or
the Principal Subsidiary Bank of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its affiliates.
(k) The financial statements (including the related notes
and supporting schedules) included in the Final Prospectus
present fairly in all material respects the financial condition
and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and (except
as indicated therein) have been prepared in conformity with
generally accepted accounting principles applied in a consistent
basis throughout the periods involved.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company the respective
number of Initial Shares set forth opposite such Underwriter's name in
Schedule II.
(b) The initial public offering price and the purchase price of the
Initial Shares shall be set forth in a separate written instrument (the
"Pricing Agreement") signed by the Representatives and the Company, the
form of which is attached to this Agreement as Schedule III. From and
after the execution and delivery of the Pricing Agreement, this Agreement
shall be deemed to include the Pricing Agreement. The purchase price per
share to be paid by the several Underwriters for the Initial Shares shall
be an amount equal to the initial public offering price, less an amount per
share to be determined by agreement among the Representatives and the
Company.
(c) In addition, on the basis of the representations and warranties
contained herein, and subject to the terms and conditions set forth in this
Agreement, the Company grants an option to the Underwriters, severally and
-5-
<PAGE>
not jointly, to purchase up to an additional _______ Option Shares at the
same price per share determined as provided above for the Initial Shares.
The option hereby granted will expire 30 days after the date of the Pricing
Agreement, and may be exercised, in whole or in part (but not more than
once), only for the purpose of covering over-allotments upon notice by the
Representatives to the Company setting forth the number of Option Shares as
to which the several Underwriters are exercising the option, and the time
and date of payment and delivery thereof. Such time and date of Delivery
(the "Date of Delivery") shall be determined by the Representatives but
shall not be later than seven full business days after the exercise of such
option and not in any event prior to the Closing Date (as defined below).
If the option is exercised as to all or any portion of the Option Shares,
the Option Shares as to which the option is exercised shall be purchased by
the Underwriters severally and not jointly, in proportion to, as nearly as
practicable, their respective Initial Shares underwriting obligations as
set forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time
specified in Schedule I hereto, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in
Section 9 (such date and time of delivery and payment for the Securities
being herein called the "Closing Date"). Delivery of the Underwriters'
Securities shall be made to the Representatives for the respective accounts
of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof in the manner set
forth in Schedule I. Unless otherwise agreed, certificates for the
Underwriters' Securities shall be in the form set forth in Schedule I
hereto, and such certificates may be deposited with The Depository Trust
Company ("DTC") or custodian for DTC and registered in the name of Cede &
Co., as nominee for DTC.
In addition, in the event that any or all of the Option Shares are
purchased by the Underwriters, delivery and payment for the Option Shares
shall be made at the office specified for delivery of the Initial Shares in
the Pricing Agreement, or at such other place as the Company and the
Representatives shall determine, on the Date of Delivery as specified in
the notice from the Representatives to the Company. Delivery of the Option
Shares shall be made to the Representatives against payment by the
Underwriters through the Representatives of the purchase price thereof to
or upon the order of the Company in the manner set forth in Schedule I.
Unless otherwise agreed, certificates for the Option Shares shall be in the
form set forth in Schedule I, and such certificates shall be registered in
such names and in such denominations as the Representatives may request not
less than three full business days in advance of the Date of Delivery.
4. Agreements. The Company agrees with the several Underwriters
that:
-6-
<PAGE>
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company
will cause the Final Prospectus to be filed with the Commission
pursuant to Rule 424 or Rule 434 via the Electronic Data
Gathering, Analysis and Retrieval System. The Company will advise
the Representatives promptly (i) when the Final Prospectus shall
have been filed with the Commission pursuant to Rule 424 or Rule
434, (ii) when any amendment to the Registration Statement
relating to the Securities shall have become effective, (iii) of
any request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered by an Underwriter or
dealer under the Act, any event occurs as a result of which, in
the judgment of the Company or in the opinion of counsel for the
Underwriters, the Final Prospectus as then amended or
supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend or
supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 4, an
amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance.
(c) The Company will make generally available to its
security holders and to the Representatives as soon as
practicable, but not later than 90 days after the close of the
period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the regulations under the Act)
-7-
<PAGE>
covering a 12-month period beginning not later than the first day
of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration
Statement.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each
amendment thereto that shall become effective on or prior to the
Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies
of any Preliminary Final Prospectus and the Final Prospectus and
any amendments thereof and supplements thereto as the
Representatives may reasonably request. Except as otherwise
provided herein, the Company will pay the expenses of printing
all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may reasonably designate, will use all reasonable
efforts to maintain such qualifications in effect so long as
required for the distribution of the Securities and will arrange
for the determination of the legality of the Securities for
purchase by institutional investors; provided, however, that the
Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any
action that would subject it to general or unlimited service of
process of any jurisdiction where it is not now so subject.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives,
offer or sell, or announce the offering of, any securities
covered by the Registration Statement or by any other
registration statement filed under the Act; provided, however,
the Company may, at any time, offer or sell or announce the
offering of any securities (A) covered by a registration
statement on Form S-8, (B) covered by a registration statement on
Form S-3 and pursuant to which the Company issues securities for
its Dividend Reinvestment Plan, or (C) reserved for such
issuance, with such reservation referred to in the Final
Prospectus.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy of the representations and warranties on the part of the
Company contained in this Agreement as of the date hereof, as of the date
of the effectiveness of any amendment to the Registration Statement filed
prior to the Closing Date (including the filing of any document
-8-
<PAGE>
incorporated by reference therein) and as of the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened; and the Final Prospectus shall have
been filed or mailed for filing with the Commission within the
time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives
the opinion of Warner Norcross & Judd LLP, counsel for the
Company, dated the Closing Date, to the effect of paragraphs (i)
through (xi) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of
the state of Michigan, has the corporate power and
authority to own its properties and conduct its
business as described in the Final Prospectus, and is
duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended; the
Principal Subsidiary Bank is a banking organization
organized under the laws of the state of Michigan and
authorized thereunder to transact business;
(ii) except for those jurisdictions specifically
enumerated in such opinion, neither the Company nor the
Principal Subsidiary Bank is required to be qualified
or licensed to do business as a foreign corporation in
any jurisdiction where it is not so qualified or
licensed, except where the failure to be so qualified
or licensed would not reasonably be expected to have a
material adverse effect on the business or properties
of the Company and its subsidiaries on a consolidated
basis;
(iii) all the outstanding shares of capital
stock of the Company and the Principal Subsidiary Bank
have been duly and validly authorized and issued and
are fully paid and (except as provided in M.C.L.
<Section> 450.1551 and the Michigan Banking Code of
1969, as amended) nonassessable, and, except as
otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of the Principal
Subsidiary Bank are owned, directly or indirectly, by
-9-
<PAGE>
the Company free and clear of any perfected security
interest and, to the knowledge of such counsel, any
other security interests, claims, liens or
encumbrances;
(iv) the Securities conform as to legal matters in
all material respects to the description thereof
contained in the Final Prospectus;
(v) if the Securities are to be listed on [the
New York Stock Exchange][The Nasdaq Stock Market],
authorization therefor has been given, subject to
official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required
supporting documents with respect to the Securities
with [the New York Stock Exchange][The Nasdaq Stock
Market] and such counsel has no reason to believe that
the Securities will not be authorized for listing,
subject to official notice of issuance and evidence of
satisfactory distribution;
(vi) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before
any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed
in the Registration Statement that is not adequately
disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character
required to be described in the Registration Statement
or Final Prospectus, or to be filed as an exhibit, that
is not described or filed as required;
(vii) the Registration Statement has become
effective under the Act; to the knowledge of such
counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final
Prospectus and each amendment thereof or supplement
thereto (other than the financial statements and other
financial and statistical information contained therein
or incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the applicable requirements
of the Act and the Exchange Act and the respective
rules thereunder;
-10-
<PAGE>
(viii) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid
and binding agreement of the Company (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights
of creditors now or hereafter in effect, and to
equitable principles that may limit the right to
specific enforcement of remedies, and except insofar as
the enforceability of the indemnity and contribution
provisions contained in this Agreement may be limited
by federal and state securities laws, and further
subject to bank regulatory powers and to the
application of principles of public policy);
(ix) no consent, approval, authorization or order
of any court or governmental agency or body is required
on behalf of the Company for the consummation of the
transactions contemplated in this Agreement, except
such as have been obtained under the Act and such as
may be required by the NASD or under the blue sky or
insurance laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in
such opinion) as have been obtained;
(x) neither the issue and sale of the Securities,
nor the consummation of any other of the transactions
in this Agreement contemplated nor the fulfillment of
the terms of this Agreement will conflict with, result
in a breach of, or constitute a default under the
Restated Articles of Incorporation or Restated Bylaws
of the Company or, to the knowledge of such counsel,
the terms of any material indenture or other material
agreement or instrument known to such counsel and to
which the Company or the Principal Subsidiary Bank is a
party or bound, or any order or regulation known to
such counsel to be applicable to the Company or the
Principal Subsidiary Bank of any court, regulatory
body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any
of its affiliates; and
(xi) to the knowledge of such counsel, each holder
of securities of the Company having rights to the
registration of such securities under the Registration
Statement has waived such rights or such rights have
expired by reason of lapse of time following
-11-
<PAGE>
notification of the Company's intention to file the
Registration Statement.
In rendering such opinion, but without opining in connection
therewith, such counsel shall also state that, although it has
not independently verified, is not passing upon and assumes no
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, it has no
reason to believe that the Registration Statement or any
amendment thereof at the time it became effective contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading, or that the Final Prospectus, as
amended or supplemented, contains any untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the state of Michigan or the United States, to the
extent deemed proper by such counsel and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are reasonably satisfactory to
counsel for the Underwriters; and (B) as to matters of fact, to
the extent deemed proper by such counsel, on certificates of
responsible officers of the Company and its subsidiaries and
public officials. In rendering such opinion with respect to the
matters covered in clause (ix), such counsel may state that its
opinion and belief are based upon the procedures specified in
such opinion, but are without independent check or verification.
(c) The Representatives shall have received from
___________, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the matters
referred to in clauses (iv), (vii), (viii), and (ix) of Paragraph
5(b). In rendering such opinion, but without opining in
connection therewith, such counsel shall also state that,
although it has not independently verified, is not passing upon
and assumes no responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement, it has no reason to believe that the Registration
Statement or any amendment thereof at the time it became
effective contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or that
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<PAGE>
the Final Prospectus, as amended or supplemented, contains any
untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters
involving the application of laws of any jurisdiction other than
the state of __________ or the United States, to the extent
deemed proper by such counsel and specified in such opinion, upon
the opinion of other counsel of good standing believed to be
reliable and who are reasonably satisfactory to counsel for the
Company.
(d) The Company shall have furnished to the Representatives
a certificate of the Company, signed by a Senior Vice President
and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement,
the Final Prospectus and this Agreement and that to the best of
their knowledge:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or, to the
best of the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been
no material adverse change in the financial condition,
earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(e) At the Closing Date, Arthur Andersen LLP shall have
furnished to the Representatives (and also addressed to the
Company's Board of Directors) a letter or letters (which letter
may refer to letters previously delivered to one or more of the
Representatives), dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that
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<PAGE>
the response, if any, to Item 10 of the Registration Statement is
correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the
meaning of the Act and the applicable published rules and
regulations thereunder.
(ii) In their opinion, the consolidated financial
statements of the Company audited by them and included or
incorporated by reference in the Registration Statement and
Final Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act and
the related published rules and regulations thereunder.
(iii) They performed review procedures (but not an
audit in accordance with generally accepted auditing
standards) consisting of:
(A) With respect to the period from the date of
the most recent audited balance sheet included or
incorporated by reference in the Final Prospectus
through a specified date not more than five business
days prior to the date of delivery of such letter:
reading the minutes of the meetings of the
shareholders, the board of directors, executive
committee and audit committee of the Company and the
Principal Bank Subsidiary as set forth in the minute
books for such period,
(B) With respect to the three, six, or nine month
period, as the case may be, ended on the date of the
most recent unaudited condensed consolidated interim
balance sheet of the Company included or incorporated
by reference in the Registration Statement and Final
Prospectus, and with respect to the same three, six, or
nine month period of the previous year:
(I) Performing the procedures specified by
the American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed
consolidated interim financial statements of the
Company included or incorporated by reference in
the Registration Statement and Final Prospectus,
(II) Making inquiries of certain officials of the
Company who have responsibility for financial and
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<PAGE>
accounting matters whether such unaudited condensed
consolidated financial statements comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published rules
and regulations,
(C) With respect to the period from the date of
the most recent unaudited condensed consolidated
interim balance sheet of the Company included or
incorporated by reference in the Final Prospectus to
the date of the latest available interim financial
data:
(I) Reading the unaudited condensed consolidated
financial statements of the Company for such period, and
(II) Inquiring of certain officials of the Company
who have responsibility for financial and accounting
matters whether the unaudited condensed consolidated
financial statements referred to in (C)(I) immediately
above are stated on a basis substantially consistent with
that of the audited consolidated financial statements
included or incorporated by reference in the
Final Prospectus.
(iv) Based on the procedures described in (iii)
immediately above, nothing came to their attention as a
result of the foregoing procedures that caused them to
believe that:
(A) The unaudited condensed consolidated
financial statements, included or incorporated by
reference in the Registration Statement and Final
Prospectus, do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder,
(B) Any material modifications should be made to
the unaudited condensed consolidated financial
statements described in (C) immediately above, included or
incorporated by reference in Final Prospectus, for them to be
in conformity with generally accepted accounting principles,
and
(C) As of the date of the latest available interim
financial data and at the specified date not more than
five business days prior to the date of delivery of
such letter, there was any change in the capital stock,
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<PAGE>
increase in long-term debt, or decrease in consolidated
net assets or shareholders' equity of the
Company (on a consolidated basis) as compared with the
amounts shown in the unaudited condensed consolidated
financial statements included or incorporated
by reference in the Final Prospectus.
(v) The letter shall also state that Arthur Andersen
LLP has carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts,
percentages and financial information that are included or
incorporated by reference in the Registration Statement and
Final Prospectus and that are specified by the
Representatives and agreed to by Arthur Andersen LLP, and
has found such amounts, percentages and financial
information to be in agreement with the relevant accounting,
financial and other records of the Company and its
subsidiaries identified in such letter.
In addition, at the time this Agreement is executed, Arthur
Andersen LLP shall have furnished to the Representatives a
letter or letters, dated the date of this Agreement, in form
and substance satisfactory to the Representatives, to the
effect set forth in this paragraph (e) and in Schedule I.
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e)
of this Section 5, or (ii) any change, or any development
involving a prospective change, in or affecting the earnings,
business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii)
above, is, in the reasonable judgment of the Representatives, so
material and adverse as to make it inadvisable to proceed with
the offering or the delivery of the Securities as contemplated by
the Registration Statement and the Final Prospectus.
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in
this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives, this Agreement
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<PAGE>
and all obligations of the Underwriters hereunder may be canceled at, or at
any time prior to, the Closing Date by the Representatives.
6. Payment of Expenses. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (i)
the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the copying of this Agreement and the
Pricing Agreement, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including capital
duties, stamp duties and stock transfer taxes, if any, payable upon
issuance of any of the Securities, the sale of the Securities to the
Underwriters and the fees and expenses of the transfer agent for the
Securities, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Securities under state securities
laws in accordance with the provisions of Section 4(e), including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation
of the "Blue Sky Survey" not to exceed $____________, (vi) the printing and
delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of the preliminary
prospectuses, and of the Prospectuses and any amendments or supplements
thereto, (vii) the printing and delivery to the Underwriters of copies of
the Blue Sky Survey, and (viii) the fee of the National Association of
Securities Dealers, Inc. and, if applicable, [the New York Stock Exchange]
[The Nasdaq Stock Market].
If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or
comply with any provision hereof other than by reason of a default by any
of the Underwriters, the Company will reimburse the Underwriters severally
upon demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Conditions to Purchase of Option Shares. In the event the
Underwriters exercise the option granted in Section 2(c) hereof to purchase
all or any portion of the Option Shares and the Date of Delivery determined
by the Representatives pursuant to Section 2 is later than the Closing
Date, the obligations of the several Underwriters to purchase and pay for
the Option Shares that they shall have respectively agreed to purchase
hereunder are subject to the accuracy of the representations and warranties
of the Company contained herein, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
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<PAGE>
been issued and no proceedings for that purpose shall have been
instituted or threatened; and any required filing of the Final
Prospectus pursuant to Rule 424(b) or Rule 434 under the Act
shall have been made within the proper time period.
(b) At the Date of Delivery, the Representatives shall have
received, each dated the Date of Delivery and relating to the
Option Shares:
(i) the favorable opinion of Warner Norcross & Judd
LLP, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, to
the same effect as the opinion required by Section 5(b);
(ii) the favorable opinion of
___________________________, counsel for the Underwriters,
to the same effect as the opinion required by Section 5(c);
(iii) a certificate of a Senior Vice President of
the Company and of the principal financial or accounting
officer of the Company with respect to the matters set forth
in Section 5(d); and
(iv) a letter from Arthur Andersen LLP, in form and
substance reasonably satisfactory to the Underwriters,
substantially the same in scope and substance as the letter
furnished to the Underwriters pursuant to Section 5(e)
except that the "specified date" in the letter furnished
pursuant to this Section 7(b)(v) shall be a date not more
than five days prior to the Date of Delivery.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives, this
Agreement and all obligations of the Underwriters hereunder may be canceled
at, or at any time prior to, the Date of Delivery by the Representatives.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
-18-
<PAGE>
contained in the Registration Statement as originally filed or in any
amendment thereof, or arise out of or are based upon omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Final Prospectus if used within the period
set forth in Section 4(d), or any amendment or supplement thereof, or arise
out of or are based upon any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
in connection with the preparation thereof, and (ii) such indemnity with
respect to the Basic Prospectus or any Preliminary Final Prospectus shall
not inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities that are the subject thereof if such
person did not receive a copy of the Final Prospectus (or the Final
Prospectus as amended or supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by
the Act and the untrue statement or omission of a material fact contained
in the Basic Prospectus or any Preliminary Final Prospectus was corrected
in the Final Prospectus (or the Final Prospectus as amended or
supplemented).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. The Company acknowledges that the statements set
forth in the language on the cover page required by Item 509 of Regulation
S-K and under the heading "Underwriting" or "Plan of Distribution" in any
Preliminary Final Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Representatives, confirm that such statements
are correct.
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<PAGE>
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability that it may have to any indemnified
party otherwise than under this Section 8. In case any such action is
brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein, and, to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert
such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a), representing the
indemnified parties under subparagraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party; and except
that if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in circumstances
in which the indemnification provided for in paragraph (a) of this Section
8 is due in accordance with its terms but is for any reason held by a court
to be unavailable from the Company on the grounds of policy or otherwise,
the Company and the Underwriters shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to
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<PAGE>
which the Company and one or more of the Underwriters may be subject in
such proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount bears to the
sum of such discount and the purchase price of the Securities specified in
Schedule I hereto and the Company is responsible for the balance; provided,
however, that (y) in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter
hereunder and (z) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person who controls an Underwriter
within the meaning of the Act shall have the same rights to contribution as
such Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject
in each case to clause (y) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations
under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
amount of Securities set forth opposite their names in Schedule II bear to
the aggregate amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities that the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Securities that the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10%
of the aggregate amount of Securities set forth in Schedule II, the
remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth
in this Section 9, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives shall determine in order that
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<PAGE>
the required changes in the Registration Statement and the Final Prospectus
or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in securities generally on [the New York Stock
Exchange] [The Nasdaq Stock Market] shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or Michigan state
authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which
on the financial markets of the United States is such as to make it, in the
reasonable judgment of the Representatives, impracticable to market the
Securities.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 8, and will survive delivery of and payment for the Securities. The
provisions of Section 6 and 8 and this Section 11 shall survive the
termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I, with a copy to: _________________
_________________________________________________________________; or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at 111 Lyon Street NW, Grand Rapids, Michigan 49503, attention of the
Secretary, with a copy to: Warner Norcross & Judd, 111 Lyon Street NW,
Grand Rapids, Michigan 49503, Attention: Gordon R. Lewis.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the internal laws of the State of New York, without
giving effect to principles of conflict of laws.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
OLD KENT FINANCIAL CORPORATION
By:
Its
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
By: [Name of Representatives]
By:__________________________
For themselves and the other several Underwriters, if any, named in
Schedule II to the foregoing Agreement.
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<PAGE>
SCHEDULE I
(Preferred Stock)
Underwriting Agreement dated ___________, 199_
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Purchase price (include type of funds, if applicable): ____________ in
federal (same day) funds or wire transfer to an account previously
designated to the Representatives by the Company, or if agreed to by
the Representatives and the Company, by certified or official bank
check or checks.
Other provisions:
Closing Date, Time and Location: ____________________
Delayed Delivery Arrangements:
Fee: ___________________
Minimum amount of each contract: ________________
Maximum aggregate amount of all contracts: ________________
Additional items to be covered by the letter from Price Waterhouse
delivered pursuant to Section 5(e) at the time this Agreement is
executed: _____________________________
<PAGE>
SCHEDULE II
(Preferred Stock)
Principal Amount
of Securities to
Underwriters be Purchased
- ------------ ---------------
<PAGE>
SCHEDULE III
Preferred Stock
_________ Shares
OLD KENT FINANCIAL CORPORATION
PRICING AGREEMENT
New York, New York
____________, 199_
___________________________,
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Underwriting Agreement, dated
_______________, 199_ (the "Underwriting Agreement"), relating to the
purchase by the several Underwriters named in Schedule I thereto, for whom
you are acting as representatives (the "Representatives"), of the above
shares of Preferred Stock (the "Initial Shares"), of Old Kent Financial
Corporation (the "Company").
We confirm that the Closing Time (as defined in Section 2 of the
Underwriting Agreement) shall be at 9:30 A.M., New York City time, on
____________, 199_ at the offices of
_________________________________________________________________________.
Pursuant to Section 2 of the Underwriting Agreement, the Company
agrees with each Underwriter as follows:
1. The initial public offering price per share for the Initial
Shares, determined as provided in said Section 2, shall be $__.__.
2. The purchase price per share for the Initial Shares to be
paid by the several Underwriters shall be $__.__, being an amount equal to
the initial public offering price set forth above less $_.__ per share.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
<PAGE>
whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Company in accordance
with its terms.
Very truly yours,
OLD KENT FINANCIAL CORPORATION
By:
Its
CONFIRMED AND ACCEPTED:
as of the date first above written:
By:
By:________________________________
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
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<PAGE>
EXHIBIT 1.3
[Warrants Units]
OLD KENT FINANCIAL CORPORATION
UNDERWRITING AGREEMENT
New York, New York
__________, 199_
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Old Kent Financial Corporation, a Michigan corporation (the
"COMPANY"), proposes to issue and sell to the underwriters named in
Schedule II hereto (the "UNDERWRITERS"), for whom you are acting as
representatives (the "REPRESENTATIVES"), warrants units (the "INITIAL
WARRANTS UNITS"). Such Initial Warrants Units are to be sold to each
Underwriter, acting severally and not jointly, in such amounts as are
listed in Schedule II opposite the name of each Underwriter. The Company
also grants to the Underwriters, severally and not jointly, the option
described in Section 2(c) to purchase up to ______ additional warrants
units (the "OPTION WARRANTS UNITS"; together with the Initial Warrants
Units, the "WARRANTS UNITS") to cover over-allotments. The Warrants Units
are more fully described in the Final Prospectus, referred to below. If
the firm or firms listed in Schedule II include only the firm or firms
listed in Schedule I, then the terms "Underwriters" and "Representatives",
as used in this Agreement, each shall be deemed to refer to such firm or
firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Underwriter, as of the date of this
Agreement and as of the date of the Pricing Agreement that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "ACT"), and has
filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on such Form S-3 (the file
number of which is set forth in Schedule I), that has become
effective, for the registration under the Act of the Warrants
Units. Such registration statement, as amended at the date of
this Agreement, meets the requirements set forth in Rule
415(a)(1) under the Act and complies in all other material
respects with Rule 415. The Company proposes to file with the
<PAGE>
Commission pursuant to Rule 424 or Rule 434 under the Act a
supplement to the form of prospectus included in such
registration statement relating to the Warrants Units and the
plan of distribution thereof and has previously advised you of
all further information (financial and other) with respect to the
Company to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date of this
Agreement, is hereinafter called the "REGISTRATION STATEMENT";
such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "BASIC
PROSPECTUS"; and such supplemented form of prospectus, in the
form in which it shall be filed with the Commission pursuant to
Rule 424 or Rule 434 (including the Basic Prospectus as so
supplemented) is hereinafter called the "FINAL PROSPECTUS." Any
preliminary form of the Final Prospectus that has heretofore been
filed pursuant to Rule 424 hereinafter is called the "PRELIMINARY
FINAL PROSPECTUS." Any reference in this Agreement to the
Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 that were filed under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"),
on or before the date of this Agreement, or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference in this
Agreement to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, and
the Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document under
the Exchange Act after the date of this Agreement, or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) As of the date of this Agreement, when the Final
Prospectus is first filed pursuant to Rule 424 or Rule 434 under
the Act, when, prior to the Closing Date (as hereinafter
defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to
the Final Prospectus is filed with the Commission and at the
Closing Date (as hereinafter defined), (i) the Registration
Statement as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, will
comply in all material respects with the applicable requirements
of the Act, and the Exchange Act and the respective rules
thereunder, (ii) the Registration Statement, as amended as of any
such time, will not contain any untrue statement of a material
-2-
<PAGE>
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading, and (iii) the Final Prospectus, as amended or
supplemented as of any such time, will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to the
information contained in or omitted from the Registration
Statement or the Final Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf
of any Underwriter through the Representatives specifically for
use in connection with the preparation of the Registration
Statement and the Final Prospectus.
(c) The Company is a duly organized and validly existing
corporation in good standing under the laws of the state of
Michigan, has the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended; Old Kent
Bank (the "Principal Subsidiary Bank") is a banking organization
formed under the laws of the state of Michigan and authorized
thereunder to transact business. It is agreed that each
Underwriter and you, as Representative, have furnished to the
Company in writing for such use the statements with respect to
Underwriters in response to Item E of Form S-1, any statements
relating to the terms of the offering by the Underwriters on the
cover page of the Final Prospectus, and all statements under the
caption "Underwriting" in the Final Prospectus.
(d) Neither the Company nor the Principal Subsidiary Bank
is required to be qualified or licensed to do business as a
foreign corporation in any jurisdiction where it is not so
qualified or licensed, except where the failure to be so
qualified would not reasonably be expected to have a material
adverse effect on the business or properties of the Company and
its subsidiaries on a consolidated basis.
(e) All the outstanding shares of capital stock of the
Company and the Principal Subsidiary Bank have been duly and
validly authorized and issued and are fully paid and (except as
provided in M.C.L. <Section> 450.1551 and the Michigan Banking
Code of 1969, as amended) nonassessable. Except as otherwise set
forth in the Final Prospectus, all outstanding shares of capital
-3-
<PAGE>
stock of the Principal Subsidiary Bank are owned, directly or
indirectly, by the Company, free and clear of any perfected
security interest and, subject to the provisions of and the
Michigan Banking Code of 1969, as amended, any other security
interests, claims, liens or encumbrances.
(f) the Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(g) There is no pending or, to the Company's knowledge,
threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement that is
not adequately disclosed in the Final Prospectus. There is no
franchise, contract or other document of a character required to
be described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit, that is not described or filed as
required.
(h) This Agreement and the Warrant Agreement have been duly
authorized, executed and delivered by the Company and each
constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights of
creditors now or hereafter in effect, and to equitable principles
that may limit the right to specific enforcement of remedies, and
except insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may be
limited by federal and state securities laws, and further subject
to bank regulatory powers and to the application of principles of
public policy).
(i) No consent, approval, authorization or order of any
court or governmental agency or body is required on behalf of the
Company for the consummation of the transactions contemplated
herein, except such as have been obtained under the Act and such
as may be required by the National Association of Securities
Dealers, Inc. ("NASD") or under the blue sky or insurance laws of
any jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters and such other approvals as
have been obtained.
(j) Neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms of this Agreement will conflict
-4-
<PAGE>
with, result in a breach of, or constitute a default under the
Restated Articles of Incorporation or Restated Bylaws of the
Company or the terms of any material indenture or other agreement
to which the Company or the Principal Subsidiary Bank is a party
or bound, or any order or regulation applicable to the Company or
the Principal Subsidiary Bank of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its affiliates.
(k) The financial statements (including the related notes
and supporting schedules) included in the Final Prospectus
present fairly in all material respects the financial condition
and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and (except
as indicated therein) have been prepared in conformity with
generally accepted accounting principles applied in a consistent
basis throughout the periods involved.
(1) The underlying securities, as set forth in the
applicable Final Prospectus, have been duly authorized and
reserved for issuance upon exercise of the Warrants Units.
2. PURCHASE AND SALE.
(a) Subject to the terms and conditions and in reliance
upon the representations and warranties set forth in this
Agreement, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase
from the Company the respective number of Initial Warrants Units
set forth opposite such Underwriter's name in Schedule II.
(b) The initial public offering price and the purchase
price of the Initial Warrants Units shall be set forth in a
separate written instrument (the "PRICING AGREEMENT") signed by
the Representatives and the Company, the form of which is
attached as Schedule III. From and after the execution and
delivery of the Pricing Agreement, this Agreement shall be deemed
to include the Pricing Agreement. The purchase price per Warrant
Unit to be paid by the several Underwriters for the Initial
Warrants Units shall be an amount equal to the initial public
offering price, less an amount per Warrant Unit to be determined
by agreement among the Representatives and the Company.
(c) In addition, on the basis of the representations and
warranties contained in this Agreement, and subject to the terms
and conditions set forth in this Agreement, the Company grants an
option to the Underwriters, severally and not jointly, to
purchase up to an additional _____ Option Warrants Units at the
-5-
<PAGE>
same price per share determined as provided above for the Initial
Warrants Units. The option hereby granted will expire 30 days
after the date of the Pricing Agreement, and may be exercised, in
whole or in part (but not more than once), only for the purpose
of covering over-allotments upon notice by the Representatives to
the Company setting forth the number of Option Warrants Units as
to which the several Underwriters are exercising the option, and
the time and date of payment and delivery thereof. Such time and
date of Delivery (the "DATE OF DELIVERY") shall be determined by
the Representatives but shall not be later than seven full
business days after the exercise of such option and not in any
event prior to the Closing Date (as defined below). If the
option is exercised as to all or any portion of the Option
Warrants Units, the Option Warrants Units as to which the option
is exercised shall be purchased by the Underwriters severally and
not jointly, in proportion to, as nearly as practicable, their
respective Initial Warrants Units underwriting obligations as set
forth on Schedule II.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Initial
Warrants Units shall be made on the date and at the time specified in the
Pricing Agreement, which date and time may be postponed by agreement
between the Representatives and the Company or as provided in Section 9
(such date and time of delivery and payment for the Initial Warrants Units
being in this Agreement called the "CLOSING DATE"). Delivery of the
Initial Warrants Units shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price
thereof in the manner set forth in Schedule I. Unless otherwise agreed,
certificates for the Initial Warrants Units shall be in the form set forth
in Schedule I, and such certificates may be deposited with The Depository
Trust Company ("DTC") or a custodian for DTC and registered in the name of
Cede & Co., as nominee for DTC.
In addition, in the event that any or all of the Option Warrants
Units are purchased by the Underwriters, delivery and payment for the
Option Warrants Units shall be made at the office specified for delivery of
the Initial Warrants Units in the Pricing Agreement, or at such other place
as the Company and the Representatives shall determine, on the Date of
Delivery as specified in the notice from the Representatives to the
Company. Delivery of the Option Warrants Units shall be made to the
Representatives against payment by the Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company in the manner set forth in Schedule I. Unless otherwise agreed,
certificates for the Option Warrants Units shall be in the form set forth
in Schedule I, and such certificates shall be registered in such names and
in such denominations as the Representatives may request not less than
three full business days in advance of the Date of Delivery.
-6-
<PAGE>
4. AGREEMENTS. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the
Warrants Units, the Company will not file any amendment to the
Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus to be filed with the
Commission pursuant to Rule 424 or Rule 434 via the Electronic
Data Gathering, Analysis and Retrieval System. The Company will
advise the Representatives promptly (i) when the Final Prospectus
shall have been filed with the Commission pursuant to Rule 424 or
Rule 434, (ii) when any amendment to the Registration Statement
relating to the Warrants Units shall have become effective, (iii)
of any request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, and (v) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Warrants Units for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use all reasonable
efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Warrants Units is required to be delivered by an Underwriter or
dealer under the Act, any event occurs as a result of which, in
the judgment of the Company or in the opinion of counsel for the
Underwriters, the Final Prospectus as then amended or
supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend or
supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 4, an
amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance.
(c) The Company will make generally available to its
security holders and to the Representatives as soon as
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<PAGE>
practicable, but not later than 90 days after the close of the
period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the regulations under the Act)
covering a twelve month period beginning not later than the first
day of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration
Statement.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each
amendment thereto that shall become effective on or prior to the
Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies
of any Preliminary Final Prospectus and the Final Prospectus and
any amendments thereof and supplements thereto as the
Representatives may reasonably request. Except as otherwise
provided herein, the Company will pay the expenses of printing
all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Warrants Units for sale under the laws of such jurisdictions as
the Representatives may reasonably designate, will use all
reasonable efforts to maintain such qualifications in effect so
long as required for the distribution of the Warrants Units and
will arrange for the determination of the legality of the
Warrants Units for purchase by institutional investors; provided,
however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to general or unlimited
service of process of any jurisdiction where it is not now so
subject.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives,
offer or sell, or announce the offering of, any securities
covered by the Registration Statement or by any other
registration statement filed under the Act; provided, however,
the Company may, at any time, offer or sell or announce the
offering of any securities (A) covered by a registration
statement on Form S-8 or (B) covered by a registration statement
on Form S-3 and pursuant to which the Company issues securities
for its dividend reinvestment plan.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Warrant Units shall be
subject to the accuracy of the representations and warranties on the part
of the Company contained in this Agreement as of the date of this
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<PAGE>
Agreement, as of the date of the effectiveness of any amendment to the
Registration Statement filed prior to the Closing Date (including the
filing of any document incorporated by reference therein), and as of the
Closing Date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened; and the Final Prospectus shall have
been filed or mailed for filing with the Commission within the
time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives
the opinion of Warner Norcross & Judd LLP, counsel for the
Company, dated the Closing Date, to the effect of paragraphs (i)
through (xii) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of
the state of Michigan, has the corporate power and
authority to own its properties and conduct its
business as described in the Final Prospectus, and is
duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended; the
Principal Subsidiary Bank is a banking organization
organized under the laws of the state of Michigan and
authorized thereunder to transact business;
(ii) except for those jurisdictions specifically
enumerated in such opinion, neither the Company nor the
Principal Subsidiary Bank is required to be qualified
or licensed to do business as a foreign corporation in
any jurisdiction where it is not so qualified or
licensed, except where the failure to be so qualified
or licensed would not reasonably be expected to have a
material adverse effect on the business or properties
of the Company and its subsidiaries on a consolidated
basis;
(iii) all the outstanding shares of capital
stock of the Company and the Principal Subsidiary Bank
have been duly and validly authorized and issued and
are fully paid and (except as provided in M.C.L.
<Section> 450.1551 and the Michigan Banking Code of
1969, as amended) nonassessable, and, except as
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<PAGE>
otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of the Principal
Subsidiary Bank are owned, directly or indirectly, by
the Company free and clear of any perfected security
interest and, to the knowledge of such counsel, any
other security interests, claims, liens or
encumbrances;
(iv) the Warrant Units conform as to legal matters
in all material respects to the description thereof
contained in the Final Prospectus;
(v) if the Warrant Units are to be listed on [the
New York Stock Exchange] [The Nasdaq Stock Market],
authorization therefor has been given, subject to
official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required
supporting documents with respect to the Initial
Warrant Units with [the New York Stock Exchange] [The
Nasdaq Stock Market] and such counsel has no reason to
believe that the Initial Warrant Units will not be
authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;
(vii) to the knowledge of such counsel, there
is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of
its subsidiaries, of a character required to be
disclosed in the Registration Statement that is not
adequately disclosed in the Final Prospectus, and there
is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an
exhibit, that is not described or filed as required;
(viii) the Registration Statement has become
effective under the Act; to the knowledge of such
counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final
Prospectus and each amendment thereof or supplement
thereto (other than the financial statements and other
financial and statistical information contained therein
or incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in
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<PAGE>
all material respects with the applicable requirements
of the Act and the Exchange Act and the respective
rules thereunder;
(ix) this Agreement, the Warrant Unit Agreement,
and the Pricing Agreement have been duly authorized,
executed and delivered by the Company and each is a
valid and binding agreement of the Company (subject, as
to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights
of creditors now or hereafter in effect, and to
equitable principles that may limit the right to
specific enforcement of remedies, and except insofar as
the enforceability of the indemnity and contribution
provisions contained in this Agreement may be limited
by federal and state securities laws, and further
subject to bank regulatory powers and to the
application of principles of public policy);
(x) no consent, approval, authorization or order
of any court or governmental agency or body is required
on behalf of the Company for the consummation of the
transactions contemplated by this Agreement, except
such as have been obtained under the Act and such as
may be required by the NASD or under the blue sky or
insurance laws of any jurisdiction in connection with
the purchase and distribution of the Warrant Units by
the Underwriters and such other approvals (specified in
such opinion) as have been obtained;
(xi) neither the issue and sale of the Warrant
Units, nor the consummation of any other of the
transactions contemplated by this Agreement, nor the
fulfillment of the terms of this Agreement, by the
Company, will conflict with, result in a breach of, or
constitute a default under the Restated Articles of
Incorporation or Restated Bylaws of the Company or, to
the knowledge of such counsel, the terms of any
material indenture or other material agreement or
instrument known to such counsel and to which the
Company or the Principal Subsidiary Bank is a party or
bound, or any order or regulation known to such counsel
to be applicable to the Company or the Principal
Subsidiary Bank of any court, regulatory body,
administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its
affiliates; and
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<PAGE>
(xii) the issuance and sale of the Warrants
Units have been duly authorized by the Company, and the
Warrants Units, when issued and paid for in accordance
with this Agreement and the Warrant Unit Agreement,
will (A) be duly and validly issued, (B) constitute
valid and legally binding obligations of the Company,
enforceable against the Company in accordance with
their terms and entitled to the benefit of the Warrant
Unit Agreement, and (C) be exercisable for such
underlying securities, currencies or commodities or, in
the case of underlying securities or commodities, the
cash value thereof, as set forth in the applicable
Final Prospectus in accordance with the terms of the
Warrants Units; the underlying securities, as set forth
in the applicable Final Prospectus, have been duly
authorized and reserved for issuance upon exercise of
the Warrants Units.
In rendering such opinion, but without opining in connection
therewith, such counsel shall also state that, although it has
not independently verified, is not passing upon and assumes no
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, it has no
reason to believe that the Registration Statement or any
amendment thereof at the time it became effective contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading, or that the Final Prospectus, as
amended or supplemented, contains any untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the state of Michigan or the United States, to the
extent deemed proper by such counsel and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are reasonably satisfactory to
counsel for the Underwriters; and (B) as to matters of fact, to
the extent deemed proper by such counsel, on certificates of
responsible officers of the Company and its subsidiaries and
public officials. In rendering such opinion with respect to the
matters covered in clause (ix), such counsel may state that its
opinion and belief are based upon the procedures specified in
such opinion, but are without independent check or verification.
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<PAGE>
(c) The Representatives shall have received from
___________, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the matters
referred to in clauses (iv),(vii), (viii), (ix), (x), and (xii)
of Paragraph 5(b). In rendering such opinion, but without
opining in connection therewith, such counsel shall also state
that, although it has not independently verified, is not passing
upon and assumes no responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration
Statement, it has no reason to believe that the Registration
Statement or any amendment thereof at the time it became
effective contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or that
the Final Prospectus, as amended or supplemented, contains any
untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters
involving the application of laws of any jurisdiction other than
the state of __________ or the United States, to the extent
deemed proper by such counsel and specified in such opinion, upon
the opinion of other counsel of good standing believed to be
reliable and who are reasonably satisfactory to counsel for the
Company.
(d) The Company shall have furnished to the Representatives
a certificate of the Company, signed by a Senior Vice President
and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement,
the Final Prospectus and this Agreement and that to the best of
their knowledge:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or, to the
best of the Company's knowledge, threatened; and
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<PAGE>
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been
no material adverse change in the financial condition,
earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(e) At the Closing Date, Arthur Andersen LLP shall have
furnished to the Representatives (and also addressed to the
Company's Board of Directors) a letter or letters (which letter
may refer to letters previously delivered to one or more of the
Representatives), dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that
the response, if any, to Item 10 of the Registration Statement is
correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the
meaning of the Act and the applicable published rules and
regulations thereunder.
(ii) In their opinion, the consolidated financial
statements of the Company audited by them and included or
incorporated by reference in the Registration Statement and
Final Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act and
the related published rules and regulations thereunder.
(iii) They performed review procedures (but not an
audit in accordance with generally accepted auditing
standards) consisting of:
(A) With respect to the period from the date of
the most recent audited balance sheet included or
incorporated by reference in the Final Prospectus
through a specified date not more than five business
days prior to the date of delivery of such letter:
reading the minutes of the meetings of the
shareholders, the board of directors, executive
committee and audit committee of the Company and the
Principal Bank Subsidiary as set forth in the minute
books for such period,
(B) With respect to the three, six, or nine month
period, as the case may be, ended on the date of the
most recent unaudited condensed consolidated interim
balance sheet of the Company included or incorporated
by reference in the Registration Statement and Final
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<PAGE>
Prospectus, and with respect to the same three, six, or
nine month period of the previous year:
(I) Performing the procedures specified by
the American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed
consolidated interim financial statements of the
Company included or incorporated by reference in
the Registration Statement and Final Prospectus,
(II) Making inquiries of certain officials of the
Company who have responsibility for financial and
accounting matters whether such unaudited condensed
consolidated financial statements comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published rules
and regulations,
(C) With respect to the period from the date of
the most recent unaudited condensed consolidated
interim balance sheet of the Company included or
incorporated by reference in the Final Prospectus to
the date of the latest available interim financial
data:
(I) Reading the unaudited condensed consolidated
financial statements of the Company for such period, and
(II) Inquiring of certain officials of the Company
who have responsibility for financial and accounting
matters whether the unaudited condensed consolidated
financial statements referred to in (C)(I) immediately
above are stated on a basis substantially consistent with
that of the audited consolidated financial statements
included or incorporated by reference in the
Final Prospectus.
(iv) Based on the procedures described in (iii)
immediately above, nothing came to their attention as a
result of the foregoing procedures that caused them to
believe that:
(A) The unaudited condensed consolidated
financial statements, included or incorporated by
reference in the Registration Statement and Final
Prospectus, do not comply as to form in all material
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<PAGE>
respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder,
(B) Any material modifications should be made to
the unaudited condensed consolidated financial
statements described in (C) immediately above, included or
incorporated by reference in Final Prospectus, for them to be
in conformity with generally accepted accounting principles,
and
(C) As of the date of the latest available interim
financial data and at the specified date not more than
five business days prior to the date of delivery of
such letter, there was any change in the capital stock,
increase in long-term debt, or decrease in consolidated
net assets or shareholders' equity of the
Company (on a consolidated basis) as compared with the
amounts shown in the unaudited condensed consolidated
financial statements included or incorporated
by reference in the Final Prospectus.
(v) The letter shall also state that Arthur Andersen
LLP has carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts,
percentages and financial information that are included or
incorporated by reference in the Registration Statement and
Final Prospectus and that are specified by the
Representatives and agreed to by Arthur Andersen LLP, and
has found such amounts, percentages and financial
information to be in agreement with the relevant accounting,
financial and other records of the Company and its
subsidiaries identified in such letter.
In addition, at the time this Agreement is executed, Arthur
Andersen LLP shall have furnished to the Representatives a
letter or letters, dated the date of this Agreement, in form
and substance satisfactory to the Representatives, to the
effect set forth in this paragraph (e) and in Schedule I.
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e)
of this Section 5, or (ii) any change, or any development
involving a prospective change, in or affecting the earnings,
business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii)
above, is, in the reasonable judgment of the Representatives, so
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<PAGE>
material and adverse as to make it impractical or inadvisable to
proceed with the offering or the delivery of the Securities as
contemplated by the Registration Statement and the Final
Prospectus.
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in
this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives, this Agreement
and all obligations of the Underwriters under this Agreement may be
canceled at, or at any time prior to, the Closing Date by the
Representatives.
6. PAYMENT OF EXPENSES. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (i)
the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the copying of this Agreement and the
Pricing Agreement, (iii) the preparation, issuance and delivery of the
certificates for the Warrants Units to the Underwriters, including capital
duties, stamp duties and stock transfer taxes, if any, payable upon
issuance of any of the Warrants Units, the sale of the Warrants Units to
the Underwriters and the fees and expenses of the transfer agent for the
Warrants Units, (iv) the fees and disbursements of the Company's counsel
and accountants, (v) the qualification of the Warrants Units under state
securities laws in accordance with the provisions of Section 4(e),
including filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of the "Blue Sky Survey," which fees shall not exceed $_____,
(vi) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto,
of the preliminary prospectuses, and of the Prospectuses and any amendments
or supplements thereto, (vii) the printing and delivery to the Underwriters
of copies of the Blue Sky Survey (not to exceed $_____), and (viii) the fee
of the NASD and, if applicable, [the New York Stock Exchange][The Nasdaq
Stock Market].
If the sale of the Warrants Units provided for in this Agreement
is not consummated because any condition to the obligations of the
Underwriters set forth in Section 5 is not satisfied or because of any
refusal, inability or failure on the part of the Company to perform any
agreement in this Agreement or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company will
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<PAGE>
reimburse the Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that
shall have been incurred by them in connection with the proposed purchase
and sale of the Warrants Units.
7. CONDITIONS TO PURCHASE OF OPTION WARRANTS UNITS. In the event
the Underwriters exercise the option granted in Section 2(c) to purchase
all or any portion of the Option Warrants Units and the Date of Delivery
determined by the Representatives pursuant to Section 2 is later than the
Closing Date, the obligations of the several Underwriters to purchase and
pay for the Option Warrants Units that they shall have respectively agreed
to purchase hereunder are subject to the accuracy of the representations
and warranties of the Company contained in this Agreement, to the
performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened; and any required filing of the Final
Prospectus pursuant to Rule 424(b) or Rule 434 under the Act
shall have been made within the proper time period.
(b) At the Date of Delivery, the Representatives shall have
received, each dated the Date of Delivery and relating to the
Option Warrants Units:
(i) the favorable opinion of Warner Norcross & Judd
LLP, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the same
effect as the opinion required by Section 5(b);
(ii) the favorable opinion of ________, counsel for the
Underwriters, to the same effect as the opinion required by
Section 5(c);
(iii) a certificate, of a Senior Vice President of
the Company and of the principal financial or accounting
officer of the Company with respect to the matters set forth
in Section 5(d); and
(iv) a letter from Arthur Andersen LLP, in form and
substance satisfactory to the Underwriters, substantially
the same in scope and substance as the letter furnished to
the Underwriters pursuant to Section 5(e) except that the
"specified date" in the letter furnished pursuant to this
Section 7(b)(iv) shall be a date not more than five days
prior to the Date of Delivery.
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<PAGE>
If any of the conditions specified in this Section 7 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and
their counsel, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Date of Delivery
by the Representatives.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or
arise out of or are based upon omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Final Prospectus if
used within the period set forth in Section 4(d), or any
amendment or supplement thereof, or arise out of or are based
upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that (i) the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in
connection with the preparation thereof, or arises out of or is
based upon statements in or omissions from that part of the
Registration Statement that shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the
1939 Act of either of the Trustees, and (ii) such indemnity with
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<PAGE>
respect to the Basic Prospectus or any Preliminary Final
Prospectus shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the
Securities that are the subject thereof if such person did not
receive a copy of the Final Prospectus (or the Final Prospectus
as amended or supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale
of such Securities to such person in any case where such delivery
is required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any
Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company
by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred
to in the foregoing indemnity. The Company acknowledges that the
statements set forth in the language on the cover page required
by Item 509 of Regulation S-K and under the heading
"Underwriting" or "Plan of Distribution" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm
that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not
relieve it from any liability that it may have to any indemnified
party otherwise than under this Section 7. In case any such
action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and,
to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party;
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<PAGE>
provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel,
approved by the Representatives in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who
are parties to such action), (ii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the
indemnifying party; and except that if clause (i) or (iii) is
applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 7 is due in accordance with its
terms but is for any reason held by a court to be unavailable
from the Company on the grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the
Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of
such discount and the purchase price of the Securities specified
in Schedule I and the Company is responsible for the balance;
provided, however, that (y) in no case shall any Underwriter
(except as may be provided in any agreement among underwriters
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<PAGE>
relating to the offering of the Securities) be responsible for
any amount in excess of the underwriting discount applicable to
the Securities purchased by such Underwriter hereunder and (z) no
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person
who controls an Underwriter within the meaning of the Act shall
have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either
the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the
Company, subject in each case to clause (y) of this paragraph
(d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under
this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they
may have hereunder or otherwise than under this paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the Warrants Units agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
that the amount of Warrants Units set forth opposite their names in
Schedule II bear to the aggregate amount of Warrants Units set forth
opposite the names of all the remaining Underwriters) the Warrants Units
that the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Warrants Units that the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Warrants
Units set forth in Schedule II, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase
any, of the Warrants Units, and if such nondefaulting Underwriters do not
purchase all the Warrants Units, this Agreement will terminate without
liability to any nondefaulting Underwriter or the Company. In the event of
a default by any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company
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<PAGE>
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. TERMINATION.This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time
(i) trading in securities generally on [the New York Stock Exchange] [The
Nasdaq Stock Market] shall have been suspended or limited or minimum prices
shall have been established on such [exchange][quotation service], (ii) a
banking moratorium shall have been declared either by Federal or Michigan
banking authorities or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Representatives, impracticable to
market the Warrant Units.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 8, and will survive delivery of and payment for the Securities.
The provisions of Section 6 and 8 and this Section 11 shall survive the
termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I, with a copy to: [____]; or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at
111 Lyon Street NW, Grand Rapids, Michigan 49503, attention of the
Secretary, with a copy to each of: Warner Norcross & Judd LLP, 111 Lyon
Street NW, Suite 900, Grand Rapids, Michigan 49503, attention: Gordon R.
Lewis.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8,
and no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the internal laws of the State of New York, without
giving effect to principles of conflict of laws.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
OLD KENT FINANCIAL CORPORATION
By:
Its:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: Name of Representatives
By:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
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<PAGE>
SCHEDULE I
Underwriting Agreement dated _______, 199_
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Purchase price (include type of funds, if applicable): in
federal (same day) funds or wire transfer to an account previously
designated to the Representatives by the Company, or if agreed to
by
the Representatives and the Company, by certified or official bank
check or checks.
Other provisions:
Closing Date, Time and Location:
Additional items to be covered by the letter from
Arthur Andersen LLP delivered pursuant to
Section 5(e) at the time this Agreement is executed:
<PAGE>
SCHEDULE II
PRINCIPAL AMOUNT OF
INITIAL WARRANTS
UNDERWRITERS UNITS TO BE PURCHASED
<PAGE>
SCHEDULE III
[Warrants Units]
OLD KENT FINANCIAL CORPORATION
PRICING AGREEMENT
New York, New York
_____________, 199_
____________,
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Underwriting Agreement, dated
________, 199_ (the "UNDERWRITING AGREEMENT"), relating to the purchase by
the several Underwriters named in Schedule I thereto, for whom you are
acting as representatives (the "REPRESENTATIVES"), of the above warrants
units issued by Old Kent Financial Corporation (the "COMPANY").
We confirm that the Closing Time (as defined in Section 2
of the Underwriting Agreement) shall be at 9:30 A.M., New York City time,
on _________, 199_ at the offices of ________.
Pursuant to Section 2 of the Underwriting Agreement, the
Company agrees with each Underwriter as follows:
1. The initial public offering price per warrant unit for the
Initial Warrants Units, determined as provided in said Section 2, shall be
$_________.
2. The purchase price per warrant unit for the Initial Warrants
Units to be paid by the several Underwriters shall be $_____, being an
amount equal to the initial public offering price set forth above less
$______ per share.
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to the Company a counterpart
hereof, whereupon this instrument, along with all counterparts, will become
a binding agreement between the Underwriters and the Company in accordance
with its terms.
<PAGE>
Very truly yours,
OLD KENT FINANCIAL CORPORATION
By:
Its:
CONFIRMED AND ACCEPTED:
as of the date first above written:
By:
By:
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
<PAGE>
SCHEDULE A
[Underwriters]
<PAGE>
EXHIBIT 1.4
[Debt Securities]
OLD KENT FINANCIAL CORPORATION
UNDERWRITING AGREEMENT
New York, New York
____________, 199_
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Old Kent Financial Corporation, a Michigan corporation (the
"COMPANY"), proposes to sell to the underwriters named in Schedule II
hereto (the "UNDERWRITERS"), for whom you are acting as representatives
(the "REPRESENTATIVES"), the principal amount of its securities identified
in Schedule I hereto (the "SECURITIES"), to be issued under an indenture
(the "INDENTURE") dated as of ____________, 199__ between the Company and
____________, as trustee (the "TRUSTEE"). If the firm or firms listed in
Schedule II include only the firm or firms listed in Schedule I, then the
terms "Underwriters" and "Representatives", as used in this Agreement, each
shall be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Underwriter that as of the date of this
Agreement:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "ACT"), and has
filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on such Form S-3 (the file
number of which is set forth in Schedule I hereto), which
registration statement has become effective, for the registration
under the Act of the Securities. Such registration statement, as
amended, at the date of this Agreement, meets the requirements
set forth in Rule 415(a)(1) under the Act and complies in all
other material respects with Rule 415. The Company proposes to
file with the Commission pursuant to Rule 424 or Rule 434 under
the Act a supplement to the form of prospectus included in such
registration statement relating to the Securities and the plan of
distribution thereof and has previously advised you of all
further information (financial and other) with respect to the
<PAGE>
Company to be set forth therein. Such registration statement,
including the exhibits thereto, as amended, at the date of this
Agreement, is hereinafter called the "REGISTRATION STATEMENT";
such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "BASIC
PROSPECTUS"; and such supplemented form of prospectus, in the
form in which it shall be filed with the Commission pursuant to
Rule 424 or Rule 434 (including the Basic Prospectus as so
supplemented) is hereinafter called the "FINAL PROSPECTUS." Any
preliminary form of the Final Prospectus that has heretofore been
filed pursuant to Rule 424 hereinafter is called the "PRELIMINARY
FINAL PROSPECTUS." Any reference in this Agreement to the
Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 that were filed under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"),
on or before the date of this Agreement, or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference in this
Agreement to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, and
the Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document under
the Exchange Act after the date of this Agreement, or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) As of the date of this Agreement, when the Final
Prospectus is first filed pursuant to Rule 424 or Rule 434 under
the Act, when, prior to the Closing Date (as defined below), any
amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by reference
in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the "Closing Date"
(as defined below), (i) the Registration Statement as amended as
of any such time, and the Final Prospectus, as amended or
supplemented as of any such time, and the Indenture will comply
in all material respects with the applicable requirements of the
Act, the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT"), and the Exchange Act and the respective rules
thereunder, (ii) the Registration Statement, as amended as of any
such time, will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, and (iii) the Final Prospectus, as amended or
supplemented as of any such time, will not contain any untrue
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<PAGE>
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (A) that
part of the Registration Statement that shall constitute the
Statement of Eligibility and Qualification of the Trustee (Form
T-1) under the Trust Indenture Act of the Trustee, or (B) the
information contained in or omitted from the Registration
Statement or the Final Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf
of any Underwriter through the Representatives specifically for
use in connection with the preparation of the Registration
Statement and the Final Prospectus. It is agreed that each
Underwriter and you, as Representative, have furnished to the
Company in writing for such use the statements with respect to
Underwriters in response to Item E of Form S-1, any statements
relating to the terms of the offering by the Underwriters on the
cover page of the Final Prospectus, and all statements under the
caption "Underwriting" in the Final Prospectus.
(c) The Company is a duly organized and validly existing
corporation in good standing under the laws of the state of
Michigan, has the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended. Old Kent
Bank (the "Principal Subsidiary Bank") is a banking organization
formed under the laws of the state of Michigan and authorized
thereunder to transact business.
(d) Neither the Company nor the Principal Subsidiary Bank
is required to be qualified or licensed to do business as a
foreign corporation in any jurisdiction where it is not so
qualified or licensed, except where the failure to be so
qualified would not reasonably be expected to have a material
adverse effect on the business or properties of the Company and
its subsidiaries on a consolidated basis.
(e) All the outstanding shares of capital stock of the
Company and the Principal Subsidiary Bank have been duly and
validly authorized and issued and are fully paid and (except as
provided in M.C.L. <Section> 450.1551 and the Michigan Banking
Code of 1969, as amended) nonassessable. Except as otherwise set
forth in the Final Prospectus, all outstanding shares of capital
stock of the Principal Subsidiary Bank are owned, directly or
indirectly, by the Company, free and clear of any perfected
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<PAGE>
security interest and, subject to the provisions of and the
Michigan Banking Code of 1969, as amended, any other security
interests, claims, liens or encumbrances.
(f) the Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(g) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights of
creditors now or hereafter in effect, and to equitable principles
that may limit the right to specific enforcement of remedies, and
further subject to bank regulatory powers and to the application
of principles of public policy). The Securities have been duly
authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid
for by the Underwriters pursuant to this Agreement will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance or
other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may limit
the right to specific enforcement of remedies, and further
subject to bank regulatory powers and to the application of
principles of public policy).
(h) There is no pending or, to the Company's knowledge,
threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement that is
not adequately disclosed in the Final Prospectus. There is no
franchise, contract or other document of a character required to
be described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit, that is not described or filed as
required.
(i) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws affecting
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the rights of creditors now or hereafter in effect, and to
equitable principles that may limit the right to specific
enforcement of remedies, and except insofar as the enforceability
of the indemnity and contribution provisions contained in this
Agreement may be limited by federal and state securities laws,
and further subject to bank regulatory powers and to the
application of principles of public policy).
(j) No consent, approval, authorization or order of any
court or governmental agency or body is required on behalf of the
Company for the consummation of the transactions contemplated in
this Agreement, except such as have been obtained under the Act
and such as may be required by the National Association of
Securities Dealers, Inc. ("NASD") or under the blue sky or
insurance laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters
and such other approvals as have been obtained.
(k) Neither the issue and sale of the Securities, nor the
consummation of any other of the transactions contemplated in
this Agreement, nor the fulfillment of the terms of this
Agreement, by the Company, will conflict with, result in a breach
of, or constitute a default under the Restated Articles of
Incorporation or Restated Bylaws of the Company or the terms of
any material indenture or other agreement to which the Company or
the Principal Subsidiary Bank is a party or bound, or any order
or regulation applicable to the Company or the Principal
Subsidiary Bank of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over
the Company or any of its affiliates.
(l) The financial statements (including the related notes
and supporting schedules) included in the Final Prospectus
present fairly in all material respects the financial condition
and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and (except
as indicated therein) have been prepared in conformity with
United States generally accepted accounting principles applied in
a consistent basis throughout the periods involved.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth in this
Agreement, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedule I, the principal
amount of the Securities set forth opposite such Underwriter's name in
Schedule II.
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3. DELIVERY AND PAYMENT. Delivery of and payment for the Securities
shall be made on the date and at the time specified in Schedule I, which
date and time may be postponed by agreement between the Representatives and
the Company or as provided in Section 8 (such date and time of delivery and
payment for the Securities being herein called the "CLOSING DATE").
Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price
thereof in the manner set forth in Schedule I. Unless otherwise agreed,
certificates for the Securities shall be in the form set forth in Schedule
I, and such certificates may be deposited with The Depository Trust Company
("DTC") or a custodian of DTC and registered in the name of Cede & Co., as
nominee for DTC.
4. AGREEMENTS. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus to be filed with the
Commission pursuant to Rule 424 or Rule 434 via the Electronic
Data Gathering, Analysis and Retrieval System. The Company will
advise the Representatives promptly (i) when the Final Prospectus
shall have been filed with the Commission pursuant to Rule 424 or
Rule 434, (ii) when any amendment to the Registration Statement
relating to the Securities shall have become effective, (iii) of
any request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, and (v) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use all reasonable efforts to
prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered by an Underwriter or
dealer under the Act, any event occurs as a result of which, in
the judgment of the Company or in the opinion of counsel for the
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Underwriters, the Final Prospectus as then amended or
supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading, or if it shall be necessary to
amend or supplement the Final Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, the
Company promptly will prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this Section 4,
an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance.
(c) The Company will make generally available to its
security holders and to the Representatives as soon as
practicable, but not later than 90 days after the close of the
period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the regulations under the Act)
covering a 12 month period beginning not later than the first day
of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration
Statement.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each
amendment thereto that shall become effective on or prior to the
Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies
of any Preliminary Final Prospectus and the Final Prospectus and
any amendments thereof and supplements thereto as the
Representatives may reasonably request. Except as otherwise
provided herein, the Company will pay the expenses of printing
all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may reasonably designate, will use all reasonable
efforts to maintain such qualifications in effect so long as
required for the distribution of the Securities and will arrange
for the determination of the legality of the Securities for
purchase by institutional investors; provided, however, that the
Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any
action that would subject it to general or unlimited service of
process of any jurisdiction where it is not now so subject.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives,
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<PAGE>
offer or sell, or announce the offering of, any securities
covered by the Registration Statement or by any other
registration statement filed under the Act; provided, however,
the Company may, at any time, offer or sell or announce the
offering of any securities (A) covered by a registration
statement on Form S-8, (B) covered by a registration statement on
Form S-3 and pursuant to which the Company issues securities for
its Dividend Reinvestment Plan, or (C) reserved for such
issuance, with such reservation referred to in the Final
Prospectus.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy of the representations and warranties on the part of the
Company contained in this Agreement as of the date of this Agreement, as of
the date of the effectiveness of any amendment to the Registration
Statement filed prior to the Closing Date (including the filing of any
document incorporated by reference therein), and as of the Closing Date, to
the accuracy of the statements of the Company made in any certificates
pursuant to the provisions of this Agreement, to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened; and the Final Prospectus shall have
been filed or mailed for filing with the Commission within the
time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives
the opinion of Warner Norcross & Judd LLP, counsel for the
Company, dated the Closing Date, to the effect of paragraphs (i)
through (xi) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of the
state of Michigan, has the corporate power and authority to
own its properties and conduct its business as described in
the Final Prospectus, and is duly registered as a bank
holding company under the Bank Holding Company Act of 1956,
as amended; the Principal Subsidiary Bank is a banking
organization organized under the laws of the state of
Michigan and authorized thereunder to transact business;
(ii) except for those jurisdictions specifically
enumerated in such opinion, neither the Company nor the
Principal Subsidiary Bank is required to be qualified or
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<PAGE>
licensed to do business as a foreign corporation in any
jurisdiction where it is not so qualified or licensed,
except where the failure to be so qualified or licensed
would not reasonably be expected to have a material adverse
effect on the business or properties of the Company and its
subsidiaries on a consolidated basis;
(iii) all the outstanding shares of capital stock
of the Company and the Principal Subsidiary Bank have been
duly and validly authorized and issued and are fully paid
and (except as provided in M.C.L. <Section> 450.1551 and the
Michigan Banking Code of 1969, as amended) nonassessable,
and, except as otherwise set forth in the Final Prospectus,
all outstanding shares of capital stock of the Principal
Subsidiary Bank are owned, directly or indirectly, by the
Company free and clear of any perfected security interest
and, to the knowledge of such counsel, any other security
interests, claims, liens or encumbrances;
(iv) the Securities conform as to legal matters in all
material respects to the description thereof contained in
the Final Prospectus;
(v) if the Securities are to be listed on [the New
York Stock Exchange] [The Nasdaq Stock Market],
authorization therefor has been given, subject to official
notice of issuance and evidence of satisfactory
distribution, or the Company has filed a preliminary listing
application and all required supporting documents with
respect to the Securities with [the New York Stock Exchange]
[The Nasdaq Stock Market] and such counsel has no reason to
believe that the Securities will not be authorized for
listing, subject to official notice of issuance and evidence
of satisfactory distribution;
(vi) the Indenture has been duly authorized, executed
and delivered by the Company, has been duly qualified under
the Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other
similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies, and
further subject to bank regulatory powers and to the
application of principles of public policy);
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<PAGE>
(vii) the Securities have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to this Agreement, will constitute
legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other
similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies, and
further subject to bank regulatory powers and to the
application of principles of public policy);
(viii) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement that is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed
as an exhibit, that is not described or filed as required;
(ix) the Registration Statement has become effective
under the Act; to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that
purpose have been instituted or threatened;
(x) the Registration Statement, the Final Prospectus
and each amendment thereof or supplement thereto (other than
the financial statements and other financial and statistical
information contained therein or incorporated by reference
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the
applicable requirements of the Act and the Exchange Act and
the respective rules thereunder;
(xi) this Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other
similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies, and
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<PAGE>
except insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may be
limited by federal and state securities laws, and further
subject to bank regulatory powers and to the application of
principles of public policy);
(xii) no consent, approval, authorization or order
of any court or governmental agency or body is required on
behalf of the Company for the consummation of the
transactions contemplated by this Agreement, except such as
have been obtained under the Act and such as may be required
by the NASD or under the blue sky or insurance laws of any
jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such
other approvals (specified in such opinion) as have been
obtained; and
(xiii) neither the issue and sale of the Securities,
nor the consummation of any other of the transactions
contemplated by this Agreement, nor the fulfillment of the
terms of this Agreement, by the Company, will conflict with,
result in a breach of, or constitute a default under the
Restated Articles of Incorporation or Restated Bylaws of the
Company or, to the knowledge of such counsel, the terms of
any material indenture or other material agreement or
instrument known to such counsel and to which the Company or
the Principal Subsidiary Bank is a party or bound, or any
order or regulation known to such counsel to be applicable
to the Company or the Principal Subsidiary Bank of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or
any of its affiliates.
In rendering such opinion, but without opining in connection
therewith, such counsel shall also state that, although it
has not independently verified, is not passing upon and
assumes no responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement, it has no reason to believe that the Registration
Statement or any amendment thereof at the time it became
effective contained any untrue statement of a material fact
or omitted to state any material fact required to be stated
therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, or that the Final Prospectus, as amended or
supplemented, contains any untrue statement of a material
fact or omits to state a material fact necessary to make the
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<PAGE>
statements therein, in light of the circumstances under
which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any
jurisdiction other than the state of Michigan or the United
States, to the extent deemed proper by such counsel and
specified in such opinion, upon the opinion of other counsel
of good standing believed to be reliable and who are
reasonably satisfactory to counsel for the Underwriters; and
(B) as to matters of fact, to the extent deemed proper by
such counsel, on certificates of responsible officers of the
Company and its subsidiaries and public officials. In
rendering such opinion with respect to the matters covered
in clause (ix), such counsel may state that its opinion and
belief are based upon the procedures specified in such
opinion, but are without independent check or verification.
(c) The Representatives shall have received from
___________, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the matters
referred to in clauses (iv), (vi), (vii), (ix), (xi), and (xii)
of Paragraph 5(b). In rendering such opinion, but without
opining in connection therewith, such counsel shall also state
that, although it has not independently verified, is not passing
upon and assumes no responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration
Statement, it has no reason to believe that the Registration
Statement or any amendment thereof at the time it became
effective contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or that
the Final Prospectus, as amended or supplemented, contains any
untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters
involving the application of laws of any jurisdiction other than
the state of __________ or the United States, to the extent
deemed proper by such counsel and specified in such opinion, upon
the opinion of other counsel of good standing believed to be
reliable and who are reasonably satisfactory to counsel for the
Company.
(d) The Company shall have furnished to the Representatives
a certificate of the Company, signed by a Senior Vice President
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and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement,
the Final Prospectus and this Agreement and that to the best of
their knowledge:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or, to the
best of the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been
no material adverse change in the financial condition,
earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(e) At the Closing Date, Arthur Andersen LLP shall have
furnished to the Representatives (and also addressed to the
Company's Board of Directors) a letter or letters (which letter
may refer to letters previously delivered to one or more of the
Representatives), dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that
the response, if any, to Item 10 of the Registration Statement is
correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the
meaning of the Act and the applicable published rules and
regulations thereunder.
(ii) In their opinion, the consolidated financial
statements of the Company audited by them and included or
incorporated by reference in the Registration Statement and
Final Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act and
the related published rules and regulations thereunder.
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<PAGE>
(iii) They performed review procedures (but not an
audit in accordance with generally accepted auditing
standards) consisting of:
(A) With respect to the period from the date of
the most recent audited balance sheet included or
incorporated by reference in the Final Prospectus
through a specified date not more than five business
days prior to the date of delivery of such letter:
reading the minutes of the meetings of the
shareholders, the board of directors, executive
committee and audit committee of the Company and the
Principal Bank Subsidiary as set forth in the minute
books for such period,
(B) With respect to the three, six, or nine month
period, as the case may be, ended on the date of the
most recent unaudited condensed consolidated interim
balance sheet of the Company included or incorporated
by reference in the Registration Statement and Final
Prospectus, and with respect to the same three, six, or
nine month period of the previous year:
(I) Performing the procedures specified by
the American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed
consolidated interim financial statements of the
Company included or incorporated by reference in
the Registration Statement and Final Prospectus,
(II) Making inquiries of certain officials of the
Company who have responsibility for financial and
accounting matters whether such unaudited condensed
consolidated financial statements comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published rules
and regulations,
(C) With respect to the period from the date of
the most recent unaudited condensed consolidated
interim balance sheet of the Company included or
incorporated by reference in the Final Prospectus to
the date of the latest available interim financial
data:
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<PAGE>
(I) Reading the unaudited condensed consolidated
financial statements of the Company for such period, and
(II) Inquiring of certain officials of the Company
who have responsibility for financial and accounting
matters whether the unaudited condensed consolidated
financial statements referred to in (C)(I) immediately
above are stated on a basis substantially consistent with
that of the audited consolidated financial statements
included or incorporated by reference in the
Final Prospectus.
(iv) Based on the procedures described in (iii)
immediately above, nothing came to their attention as a
result of the foregoing procedures that caused them to
believe that:
(A) The unaudited condensed consolidated
financial statements, included or incorporated by
reference in the Registration Statement and Final
Prospectus, do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder,
(B) Any material modifications should be made to
the unaudited condensed consolidated financial
statements described in (C) immediately above, included or
incorporated by reference in Final Prospectus, for them to be
in conformity with generally accepted accounting principles,
and
(C) As of the date of the latest available interim
financial data and at the specified date not more than
five business days prior to the date of delivery of
such letter, there was any change in the capital stock,
increase in long-term debt, or decrease in consolidated
net assets or shareholders' equity of the
Company (on a consolidated basis) as compared with the
amounts shown in the unaudited condensed consolidated
financial statements included or incorporated
by reference in the Final Prospectus.
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<PAGE>
(v) The letter shall also state that Arthur Andersen
LLP has carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts,
percentages and financial information that are included or
incorporated by reference in the Registration Statement and
Final Prospectus and that are specified by the
Representatives and agreed to by Arthur Andersen LLP, and
has found such amounts, percentages and financial
information to be in agreement with the relevant accounting,
financial and other records of the Company and its
subsidiaries identified in such letter.
In addition, at the time this Agreement is executed, Arthur
Andersen LLP shall have furnished to the Representatives a
letter or letters, dated the date of this Agreement, in form
and substance satisfactory to the Representatives, to the
effect set forth in this paragraph (e) and in Schedule I.
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e)
of this Section 5, or (ii) any change, or any development
involving a prospective change, in or affecting the earnings,
business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii)
above, is, in the reasonable judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to
proceed with the offering or the delivery of the Securities as
contemplated by the Registration Statement and the Final
Prospectus.
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in
this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives, this Agreement
and all obligations of the Underwriters under this Agreement may be
canceled at, or at any time prior to, the Closing Date by the
Representatives.
6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Securities provided for in this Agreement is not consummated because any
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condition to the obligations of the Underwriters set forth in Section 5 is
not satisfied or because of any refusal, inability or failure on the part
of the Company to perform any agreement in this Agreement or comply with
any provision of this Agreement other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally
upon demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or
arise out of or are based upon omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Final Prospectus if
used within the period set forth in Section 4(d), or any
amendment or supplement thereof, or arise out of or are based
upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that (i) the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in
connection with the preparation thereof, or arises out of or is
based upon statements in or omissions from that part of the
Registration Statement that shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the
1939 Act of either of the Trustees, and (ii) such indemnity with
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respect to the Basic Prospectus or any Preliminary Final
Prospectus shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the
Securities that are the subject thereof if such person did not
receive a copy of the Final Prospectus (or the Final Prospectus
as amended or supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale
of such Securities to such person in any case where such delivery
is required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any
Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company
by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred
to in the foregoing indemnity. The Company acknowledges that the
statements set forth in the language on the cover page required
by Item 509 of Regulation S-K and under the heading
"Underwriting" or "Plan of Distribution" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm
that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not
relieve it from any liability that it may have to any indemnified
party otherwise than under this Section 7. In case any such
action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and,
to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party;
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<PAGE>
provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel,
approved by the Representatives in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who
are parties to such action), (ii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action, or
(iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the
indemnifying party; and except that if clause (i) or (iii) is
applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 7 is due in accordance with its
terms but is for any reason held by a court to be unavailable
from the Company on the grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the
Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of
such discount and the purchase price of the Securities specified
in Schedule I and the Company is responsible for the balance;
provided, however, that (y) in no case shall any Underwriter
(except as may be provided in any agreement among underwriters
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<PAGE>
relating to the offering of the Securities) be responsible for
any amount in excess of the underwriting discount applicable to
the Securities purchased by such Underwriter hereunder and (z) no
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person
who controls an Underwriter within the meaning of the Act shall
have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either
the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the
Company, subject in each case to clause (y) of this paragraph
(d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under
this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they
may have hereunder or otherwise than under this paragraph (d).
8. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations
under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions that the
amount of Securities set forth opposite their names in Schedule II bear to
the aggregate amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities that the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Securities that the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10%
of the aggregate amount of Securities set forth in Schedule II, the
remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth
in this Section 8, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus
or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
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<PAGE>
liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
9. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in securities generally on [the New York Stock
Exchange] [The Nasdaq Stock Market] shall have been suspended or limited or
minimum prices shall have been established on such [exchange][quotation
service], (ii) a banking moratorium shall have been declared either by
Federal or Michigan banking authorities or (iii) there shall have occurred
any outbreak or material escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is
such as to make it, in the reasonable judgment of the Representatives,
impracticable to market the Securities.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 7, and will survive delivery of and payment for the Securities.
The provisions of Section 6 and 7 and this Section 10 shall survive the
termination or cancellation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I, with a copy to: [____]; or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at
111 Lyon Street NW, Grand Rapids, Michigan 49503, attention of the
Secretary, with a copy to each of: Warner Norcross & Judd LLP, 111 Lyon
Street NW, Suite 900, Grand Rapids, Michigan 49503, attention: Gordon R.
Lewis.
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties and their respective successors and the officers
and directors and controlling persons
referred to in Section 7, and no other person will have any right or
obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the internal laws of the State of New York, without
giving effect to principles of conflict of laws.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
OLD KENT FINANCIAL CORPORATION
By:
Its:
The foregoing Agreement is hereby confirmed and
accepted as of the date specified in Schedule I hereto.
By:
By
For themselves and the other several Underwriters, if any, named in
Schedule II to the foregoing Agreement.
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<PAGE>
SCHEDULE I
(Debt Securities)
Underwriting Agreement dated ___________, 199_
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title: ____% [Subordinated] [Senior] Notes, due 20__
Principal amount: $___,000,000
Purchase price (include type of funds and accrued interest or
amortization, if applicable): ______%; in federal (same day)
funds or wire transfer to an account previously designated to the
Representatives by the Company or, if agreed to by the
Representatives and the Company, by certified or official bank
check or checks.
Sinking fund provisions: [None]
Redemption provisions: [None]
Other provisions: [None]
Closing Date, Time and Location: ____________, New York City
time, Office of [__________]
Listing: [None]
Additional items to be covered by the letter from Arthur Andersen LLP
delivered pursuant to Section 5(e) at the time this Agreement is
executed:
<PAGE>
SCHEDULE II
(Debt Securities)
PRINCIPAL AMOUNT
OF SECURITIES TO
UNDERWRITERS BE PURCHASED
<PAGE>
EXHIBIT 4.4
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<PAGE>
EXHIBIT 4.4
CERTIFICATE NUMBER Shares
** ** ** **
COMMON
OLD KENT FINANCIAL CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF MICHIGAN
CUSIP 679833-10-3
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS
CERTIFIES
THAT
SPECIMEN
IS THE
OWNER
OF
fully paid and non-assessable shares of the par value of One Dollar ($1.00)
each, of COMMON STOCK of
OLD KENT FINANCIAL CORPORATION
transferable upon the books of the Corporation by the owner hereof, in person
or by duly authorized attorny, upon surrender of this Certificate properly
endorsed.
The Corporation will furnish to a shareholder upon request and without
charge a full statement of the designation, relative rights, preferences and
limitations of the shares of each class of capital stock of the Corporation
authorized for issuance, as well as the designation, relative rights,
preferences and limitations of each series of any class of capital stock so
far as the same may have been prescribed and the authority of the board to
designate and prescribe the relative rights, preferences and limitations of
other series. The Corporation, and all amendments thereto, to all of which
the holder of this certificate assents by acceptance hereof.
This Certificate shall not be valid unless countersigned by the Transfer
Agent and registered by the Registrar.
WITNESS the signatures of the duly authorized officers of the Corporation.
DATED Countersigned:
OLD KENT BANK
/s/David J. Wagner Transfer Agent and Registrar
Chairman of the Board
By ________________________________
/s/Mary E. Tuuk Authorized Signature
Secretary See Legend on Reverse
<PAGE>
This certificate also evidences and entitles the holder hereof to certain Rights
as set forth in a Rights Agreement between Old Kent Financial Corporation (the
"Company") and Old Kent Bank (the "Rights Agent") dated as of January 20, 1997,
as from time to time amended (the "Rights Agreement"), the terms of which are
incorporated herein by reference and a copy of which is on file at the principal
offices of the Company. Under certain circumstances set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. The Company will mail to the holder of
this certificate a copy of the Rights Agreement, as in effect on the date of
mailing, without charge, promptly after receipt of a written request therefor.
Under certain circumstances set forth in the Rights Agreement, Rights issued to,
or held by, any Person who is, was or becomes an Acquiring Person or Adverse
Person or any Affiliate or Associate thereof (as such terms are definnd in the
Rights Agreement), whether currently held by or on behalf of such Person or by
any subsequent holder, may become null and void.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws and regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT--__Custodian____
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list
For value received, _______________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
[ ]
_____________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE)
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_______________________________________________________________________ shares
of the capital stock represented by the within Certificate and do hereby
irrevocably constitute and appoint
<PAGE>
___________________________________________ Attorney to transfer the said
stock on the books of the within named Corporation with full power of
substitution in the premises.
Dated ___________________________
(SIGNATURE) ______________________________
(SIGNATURE) ______________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME WRITTEN
UPON THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
<PAGE>
EXHIBIT 4.7
OLD KENT FINANCIAL CORPORATION,
________________________, as Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_________________
DEPOSIT AGREEMENT
_________________
Dated as of ____________, ____
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I - Definitions. . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II - Form of Receipts, Deposit of Stock, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts. . . . . . . . . . . .3
SECTION 2.01. Form and Transfer of Receipts. . . . . . . . . . . . .3
SECTION 2.02 Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. . . . . . . . . . . . . . . . . . . .4
SECTION 2.03. Registration of Transfer of Receipts . . . . . . . . .4
SECTION 2.04. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock . . . . . . . . . . .5
SECTION 2.05. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts . . . . . . . . . .6
SECTION 2.06. Lost Receipts, etc . . . . . . . . . . . . . . . . . .6
SECTION 2.07. Cancellation and Destruction of Surrendered Receipts .6
[SECTION 2.08. Conversion Rights . . . . . . . . . . . . . . . . . .6
SECTION 2.09. Redemption or Exchange of Stock. . . . . . . . . . . .8
ARTICLE III - Certain Obligations of Holders of Receipts and the Company.10
SECTION 3.01. Filing Proofs, Certificates and Other Information. . 10
SECTION 3.02. Payment of Taxes or Other Governmental Charges . . . 10
SECTION 3.03. Warranty as to Stock . . . . . . . . . . . . . . . . 11
SECTION 3.04. Warranty as to Receipts. . . . . . . . . . . . . . . 11
SECTION 3.05. Warranty as to Capital Securities. . . . . . . . . . 11
SECTION 3.06. Warrant as to Debt Securities. . . . . . . . . . . . 11
ARTICLE IV - The Deposited Securities; Notices . . . . . . . . . . . . . 11
SECTION 4.01. Cash Distributions . . . . . . . . . . . . . . . . . 11
SECTION 4.02. Distributions Other than Cash, Rights, Preferences
or Privileges. . . . . . . . . . . . . . . . . . . . 12
SECTION 4.03. Subscription Rights, Preferences or Privileges . . . 12
SECTION 4.04. Notice of Dividends, etc.; Fixing Record Date for
Holders of Receipts. . . . . . . . . . . . . . . . . 13
SECTION 4.05. Voting Rights. . . . . . . . . . . . . . . . . . . . 14
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. . . . . . 14
SECTION 4.07. Delivery of Reports. . . . . . . . . . . . . . . . . 15
SECTION 4.08. Lists of Receipt Holders . . . . . . . . . . . . . . 15
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ARTICLE V - The Depositary, the Depositary's Agents, the Registrar and the
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books
by the Depositary; Registrar . . . . . . . . . . . . 15
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar
or the Company . . . . . . . . . . . . . . . . . . . 16
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. . . . . . . . 16
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary . . . . . . . . 17
SECTION 5.05. Corporate Notices and Reports. . . . . . . . . . . . 18
SECTION 5.06. Indemnification by the Company . . . . . . . . . . . 18
SECTION 5.07. Charges and Expenses . . . . . . . . . . . . . . . . 18
ARTICLE VI - Amendment and Termination . . . . . . . . . . . . . . . . . 18
SECTION 6.01. Amendment. . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.02. Termination. . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII - Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.01. Counterparts . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.02. Exclusive Benefit of Parties . . . . . . . . . . . . 20
SECTION 7.03. Invalidity of Provisions . . . . . . . . . . . . . . 20
SECTION 7.04. Notices. . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.05. Depositary's Agents. . . . . . . . . . . . . . . . . 21
SECTION 7.06. Holders of Receipts Are Parties. . . . . . . . . . . 21
SECTION 7.07. Title. . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.08. Governing Law. . . . . . . . . . . . . . . . . . . . 21
SECTION 7.09. Inspection of Deposit Agreement. . . . . . . . . . . 21
SECTION 7.10. Headings . . . . . . . . . . . . . . . . . . . . . . 21
FORM OF FACE OF RECEIPT. . . . . . . . . . . . . . . . . . . . . . . . . .1
FORM OF REVERSE OF RECEIPT . . . . . . . . . . . . . . . . . . . . . . . .2
-ii-
<PAGE>
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of ______________, ____, among OLD
KENT FINANCIAL CORPORATION, a Michigan corporation (the "Company"),
_______________________, a ______________________________________
("Depositary"), and the holders from time to time of the Receipts described
herein.
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of ________ Preferred
Stock, Series _____, $__________ liquidation preference per share (the
"Stock"), of OLD KENT FINANCIAL CORPORATION with the Depositary for the
purposes set forth in this Deposit Agreement and for the issuance hereunder
of Receipts evidencing Depositary Shares in respect of the Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective terms used in this Deposit
Agreement:
"Capital Securities" means any securities issued by the Company
that consist of any one of the following: (i) Common Stock, (ii) Perpetual
Preferred Stock, or (iii) other capital securities of the Company
acceptable to the Company's Primary Federal Regulator. Capital Securities
may have such terms, rights and preferences as may be determined by the
Company.
"Certificate" shall mean the certificate of designation
establishing a series of a class of Stock filed with the Department of
Consumer and Industry Services of the State of Michigan establishing the
Stock as a series of preferred stock of the Company.
"Common Stock" shall mean the common stock, par value $1.00 per
share, of the Company or any security into which the Common Stock may have
been changed.
<PAGE>
"Company" shall mean Old Kent Financial Corporation, a Michigan
corporation, and its successors.
"Debt Securities" shall mean the senior or subordinated debt
securities of the Company issued in one or more series pursuant to the
Indentures.
"Deposit Agreement" shall mean this Deposit Agreement, as amended
or supplemented from time to time.
"Depositary" shall mean ______________________, and any successor
as Depositary hereunder.
"Depositary Shares" shall mean Depositary shares, each
representing [specify fraction] of a share of Stock and evidenced by a
Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the
Depositary, at which at any particular time its depositary receipt business
shall be administered.
"Indentures" shall mean the Indentures relating to the Debt
Securities of the Company.
"Perpetual Preferred Stock" means any stock of any class or
series of the Company that has a preference over Common Stock in respect of
dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and that
is not mandatorily redeemable or repayable by the Company, or redeemable or
repayable at the option of the holder of such stock otherwise than in
shares of Common Stock or Perpetual Preferred Stock of another class of
series or with the proceeds of the sale of Common Stock or Perpetual
Preferred Stock.
"Primary Federal Regulator" means the Company's primary federal
banking regulator (which, at the date of this Deposit Agreement, is the
Board of Governors of the Federal Reserve System), or any successor body or
institution performing substantially the same regulatory function with
respect to the Company and the adequacy of its capital as such Board of
Governors performs on the date hereof.
"Receipt" shall mean one of the Depositary Receipts,
substantially in the form set forth as Exhibit A, issued hereunder, whether
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<PAGE>
in definitive or temporary form and evidencing the number of Depositary
Shares held of record by the record holder of such Depositary Shares.
"record holder" or "holder" as applied to a Receipt shall mean
the person in whose name a Receipt is registered on the books of the
Depositary maintained for such purpose.
"Registrar" shall mean the Depositary or such other bank or trust
company which shall be appointed to register ownership and transfers of
Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. FORM AND TRANSFER OF RECEIPTS. Definitive
Receipts shall be engraved or printed or lithographed on steel-engraved
borders, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company or any holder of Stock,
as the case may be, delivered in compliance with Section 2.02, shall
execute and deliver temporary Receipts that are printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor of the
definitive Receipts in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as
the persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Company
and the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts shall be exchangeable for definitive Receipts upon
surrender of the temporary Receipts at an office described in the
penultimate paragraph of Section 2.02, without charge to the holder. Upon
surrender for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor definitive
Receipts representing the same number of Depositary Shares as represented
by the surrendered temporary Receipt or Receipts. Such exchange shall be
made at the Company's expense and without any charge therefor. Until so
exchanged, the temporary Receipts shall in all respects be entitled to the
same benefits under this Deposit Agreement, and with respect to the Stock,
as definitive Receipts.
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Receipts shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary; PROVIDED, that
such signature may be a facsimile if a Registrar for the Receipts (other
than the Depositary) shall have been appointed and such Receipts are
countersigned by a duly authorized officer of the Registrar. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid
or obligatory for any purpose unless it shall have been executed manually
by a duly authorized officer of the Depositary or, if a Registrar for the
Receipts (other than the Depositary) shall have been appointed, by manual
or facsimile signature of a duly authorized officer of the Depositary and
countersigned by a duly authorized officer of such Registrar. The
Depositary shall record on its books each Receipt so signed and delivered
as hereinafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary
or required to comply with any applicable law or any regulation thereunder
or with the rules and regulations of any securities exchange upon which the
Stock, the Depositary Shares or the Receipts may be listed or to conform
with any usage with respect thereto, or to indicate any special limitations
or restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt that is
properly endorsed or accompanied by a properly executed instrument of
transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument; PROVIDED, HOWEVER, that until transfer of
a Receipt shall be registered on the books of the Depositary as provided in
Section 2.03, the Depositary may, notwithstanding any notice to the
contrary, treat the record holder thereof at such time as the absolute
owner thereof for the purpose of determining the person entitled to
distributions of dividends or other distributions or to any notice provided
for in this Deposit Agreement and for all other purposes.
SECTION 2.02 DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF
RECEIPTS IN RESPECT THEREOF. Subject to the terms and conditions of this
Deposit Agreement, the Company or any holder of Stock may from time to time
deposit shares of the Stock under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the Stock to be deposited,
properly endorsed or accompanied, if required by the Depositary, by a duly
executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company or such holder, as the case
may be, directing the Depositary to execute and deliver to, or upon the
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written order of, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing such deposited
Stock.
Deposited Stock shall be held by the Depositary at the
Depositary's office or at such other place or places as the Depositary
shall determine.
Upon receipt by the Depositary of a certificate or certificates
for Stock deposited in accordance with the provisions of this Section,
together with the other documents required as above specified, and upon
recordation of the Stock on the books of the Company in the name of the
Depositary or its nominee, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver, to or upon
the order of the person or persons named in the written order delivered to
the Depositary referred to in the first paragraph of this Section, a
Receipt or Receipts for the number of Depositary Shares representing the
Stock so deposited and registered in such name or names as may be requested
by such person or persons. The Depositary shall execute and deliver such
Receipt or Receipts at the Depositary's Office or such other offices, if
any, as the Depositary may designate. Delivery at other offices shall be
at the risk and expense of the person requesting such delivery.
SECTION 2.03. REGISTRATION OF TRANSFER OF RECEIPTS. Subject to
the terms and conditions of this Deposit Agreement, the Depositary shall
register on its books from time to time transfers of Receipts upon any
surrender thereof by the holder in person or by duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of
transfer. Thereupon, the Depositary shall execute a new Receipt or
Receipts evidencing the same aggregate number of Depositary Shares as those
evidenced by the Receipt or Receipts surrendered and deliver such new
Receipt or Receipts to or upon the order of the person entitled thereto.
SECTION 2.04. SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER
OF RECEIPTS AND WITHDRAWAL OF STOCK. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may
designate for the purpose of effecting a split-up or combination of such
Receipt or Receipts, and subject to the terms and conditions of this
Deposit Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denomination or denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of
whole shares of Stock may withdraw the Stock and all money and other
property, if any, represented thereby by surrendering such Receipt or
Receipts, at the Depositary's Office or at such other offices as the
Depositary may designate for such withdrawals. Thereafter, without
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unreasonable delay, the Depositary shall deliver to such holder or to the
person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Stock will not thereafter be entitled to
deposit such Stock hereunder or to receive Depositary Shares therefor. If
a Receipt delivered by the holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the number of whole shares of
Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or upon his
order, a new Receipt evidencing such excess number of Depositary Shares.
Delivery of the Stock and money and other property being withdrawn may be
made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are
to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holders
shall execute and deliver to the Depositary a written order so directing
the Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument
of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk
and expense of the holder surrendering such Receipt or Receipts and for the
account of the holder thereof, such delivery may be made at such other
place as may be designated by such holder.
SECTION 2.05. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND EXCHANGE OF RECEIPTS. As a condition precedent to the
execution and delivery, registration of transfer, split-up, combination,
surrender or exchange of any Receipt, the Depositary, any of the
Depositary's Agents or the Company may require payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the
Company shall have made such payment, the reimbursement to it) of any
charges or expenses payable by the holder of a Receipt pursuant to Section
5.07, may require the production of evidence satisfactory to it as to the
identity and genuineness of any signature and may also require compliance
with such regulations, if any, as the Depositary or the Company may
establish consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts
against Stock may be suspended, the registration of transfer of Receipts
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may be refused and the registration of transfer, surrender or exchange of
outstanding Receipts may be suspended (i) during any period when the
register of shareholders of the Company is closed or (ii) if any such
action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because
of any requirement of law or of any government or governmental body or
commission or under any provision of this Deposit Agreement.
SECTION 2.06. LOST RECEIPTS, ETC. In case any receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution
for such destroyed, lost or stolen Receipt, upon (i) the filing by the
holder thereof with the Depositary of evidence satisfactory to the
Depositary of such destruction or loss or theft of such Receipt, of the
authenticity thereof and of his or her ownership thereof and (ii) the
furnishing of the Depositary with reasonable indemnification satisfactory
to it.
SECTION 2.07. CANCELLATION AND DESTRUCTION OF SURRENDERED
RECEIPTS. All Receipts surrendered to the Depositary or any Depositary's
Agent shall be cancelled by the Depositary. Except as prohibited by
applicable law or regulation, the Depositary is authorized to destroy all
Receipts so cancelled.
[SECTION 2.08. CONVERSION RIGHTS. Receipts may be surrendered
with written instructions to the Depositary to instruct the Company to
cause the conversion of any specified number of whole or fractional shares
of Stock represented by the Depositary Shares evidenced by such Receipts
into the number of whole shares of Capital Securities obtained by dividing
the aggregate liquidation preference of such Depositary Shares by the
Conversion Price (as such term is defined in the Certificate) then in
effect, as such Conversion Price may be adjusted by the Company from time
to time as provided in the Certificate. Subject to the terms and
conditions of this Deposit Agreement and the Certificate, a holder of a
Receipt or Receipts evidencing Depositary Shares representing whole or
fractional shares of Stock may surrender such Receipt or Receipts to the
Depositary at the Depositary's Office or to such office or to such
Depositary's Agents as the Depositary may designate for such purpose,
together with (i) a notice of conversion thereof duly completed and
executed (a "Notice of Conversion"), and (ii) any payment in respect of
dividends required by the fourth paragraph of this Section 2.08, thereby
directing the Depositary to instruct the Company to cause the conversion of
the number of shares or fractions thereof of underlying Stock specified in
such Notice of Conversion into whole shares of Capital Securities. In the
event that a holder delivers to the Depositary for conversion a Receipt or
Receipts that, in the aggregate, are convertible into less than one whole
share of Capital Securities or any number of whole shares of Capital
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Securities plus an excess constituting less than one whole share of Capital
Securities, the holder shall receive payment in lieu of such fractional
shares of Capital Securities otherwise issuable in accordance with the last
paragraph of this Section 2.08. If more than one Receipt shall be
delivered for conversion at one time by the same holder, the number of
whole shares of Capital Securities issuable upon conversion thereof shall
be computed on the basis of the aggregate number of Receipts so delivered.
Upon receipt by the Depositary of a Receipt or Receipts, together
with a Notice of Conversion, duly completed and executed, directing the
Depositary to instruct the Company to cause the conversion of a specified
number of shares or fractions thereof of Stock, the Depositary shall, on
the date of receipt of such Notice of Conversion, instruct the Company (i)
to cause the conversion of the Depositary Shares evidenced by the Receipts
so surrendered for conversion as specified in the written Notice of
Conversion to the Depositary and (ii) to cause the delivery to the holder
or holders of such Receipts of a certificate or certificates evidencing the
number of whole shares of Capital Securities and the amount of money, if
any, to be delivered to the holders of Receipts surrendered for conversion
in payment of any fractional shares of Capital Securities. The Company
shall, as promptly as practicable after receipt thereof, cause the delivery
to such holder or holders of (i) a certificate or certificates evidencing
the number of whole shares of Capital Securities into which the Stock
represented by the Depositary Shares evidenced by such Receipt or Receipts
has been converted, and (ii) any money or other property to which the
holder or holders are entitled. The person or persons in whose name or
names any certificate or certificates for shares of Capital Securities
shall be issuable upon such conversion shall be deemed to have become the
holder or holders of record of the shares represented thereby at the close
of business on the date such Receipt or Receipts shall have been
surrendered to and a Notice of Conversion received by the Depositary,
unless the stock transfer books of the Company shall be closed on that
date, in which event such person or persons shall be deemed to have become
such holder or holders of record on the next succeeding day on which such
stock transfer books are open. Upon such conversion, the Depositary (i)
shall deliver to the holder a Receipt evidencing the number of Depositary
Shares, if any, that such holder has elected not to convert in excess of
the number of Depositary Shares representing Stock that has been so
converted, (ii) shall cancel the Depositary Shares evidenced by Receipts
surrendered for conversion and (iii) shall deliver for cancellation to the
transfer agent for the Stock the shares of Stock represented by the
Depositary Shares evidenced by the Receipts so surrendered and so
converted.
If any Stock shall be called by the Company for redemption or
exchange, the Depositary Shares representing such Stock may be converted
into Capital Securities as provided in this Deposit Agreement until and
including, but not after, the close of business on the Redemption Date or
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the Exchange Date (each as defined below) unless the Company shall default
in making payment of the amount payable upon such redemption. Upon receipt
by the Depositary of a Receipt or Receipts representing any Stock called
for redemption or exchange, together with a properly completed and executed
Notice of Conversion, the shares of Stock held by the Depositary
represented by such Depositary Shares for which conversion is requested
shall be deemed to have been received by the Company for conversion.
Upon any conversion of the Stock underlying the Depositary
Shares, no allowance, adjustment or payment shall be made with respect to
accrued dividends upon such Stock except that if any holder of a Receipt
surrenders such Receipt with instructions to the Depositary for conversion
of the underlying Stock evidenced thereby during the period between the
opening of business on any dividend record date and the close of business
on the corresponding dividend payment date (except shares called for
redemption or exchange on a Redemption Date or Exchange Date during such
period), such Receipt must be accompanied by a payment equal to the
dividend thereon, if any, which the holder of record of such Receipt is
entitled to receive on such dividend payment date in respect of the
underlying Stock to be converted.
Upon the conversion of any shares of Stock for which a Notice of
Conversion has been received by the Depositary, all dividends in respect of
such Depositary Shares shall cease to accrue, such Depositary Shares shall
be deemed no longer outstanding, all rights of the holder of the Receipt
with respect to such Depositary Shares (except the right to receive the
Capital Securities, any cash payable with respect to any fractional shares
of Capital Securities as provided herein and any cash payable on account of
accrued dividends in respect of the Stock so converted and any Receipts
evidencing Depositary Shares not so converted) shall terminate, and the
Receipt evidencing such Depositary Shares shall be cancelled in accordance
with Section 2.07 hereof.
No fractional shares of Capital Securities shall be issuable upon
conversion of Stock underlying the Depositary Shares. If, except for the
provisions of this Section 2.08 and the Certificate, any holder of Receipts
surrendered with instructions to the Depositary for conversion of the
underlying Stock would be entitled to a fractional share of Capital
Securities upon such conversion, the Company shall cause to be delivered to
such holder an amount in cash for such fractional share determined in
accordance with the Certificate.]
SECTION 2.09. REDEMPTION OR EXCHANGE OF STOCK. Whenever the
Company shall be permitted and shall elect to redeem or exchange shares of
Stock in accordance with the provisions of the Certificate, it shall
(unless otherwise agreed to in writing with the Depositary) give or cause
to be given to the Depositary not less than 10 days' and not more than 60
days' notice of the date of such proposed redemption or exchange of Stock
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and of the number of such shares held by the Depositary to be so redeemed
or exchanged and (i) the applicable redemption price or (ii) the class and
stated value or tenor and aggregate principal amount of Capital Securities
or Debt Securities to be issued in exchange, as set forth in the
Certificate, which notice shall be accompanied by a certificate from the
Company stating that such redemption or exchange of Stock is in accordance
with the provisions of the Certificate. On the date of such redemption or
exchange, provided that the Company shall then have paid or caused to be
paid in full to the Depositary the redemption price of the Stock to be
redeemed or the Capital Securities or Debt Securities to be issued in
exchange for stock to be exchanged, plus an amount equal to any accrued and
unpaid dividends thereon to the date fixed for redemption or exchange, in
accordance with the provisions of the Certificate, the Depositary shall
redeem the number of Depositary Shares representing such Stock. The
Depositary shall mail notice of the Company's redemption or exchange of
Stock and the proposed simultaneous redemption or exchange of the number of
Depositary Shares representing the Stock to be redeemed or exchanged by
first-class mail, postage prepaid, not less than 10 and not more than 60
days prior to the date fixed for redemption or exchange of such Stock and
Depositary Shares (the "Redemption Date" or the "Exchange Date",
respectively), to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed or exchanged, at the addresses of such
holders as they appear on the records of the Depositary; but neither
failure to mail any such notice of redemption or exchange of Depositary
Shares to one or more such holders nor any defect in any notice of
redemption or exchange of Depositary Shares to one or more such holders
shall affect the sufficiency of the proceedings for redemption or exchange
as to the other holders. Each such notice shall state: (i) the Redemption
Date or Exchange Date; (ii) the number of Depositary Shares to be redeemed
or exchanged and, if less than all the Depositary Shares held by any such
holder are to be redeemed or exchanged, the number of such Depositary
Shares held by such holder to be so redeemed or exchanged; (iii) (a) the
redemption price or (b) the class and stated value or tenor and aggregate
principal amount of Capital Securities or Debt Securities to be issued in
exchange; (iv) the place or places where Receipts evidencing Depositary
Shares are to be surrendered for payment of the redemption price; (v) the
then current conversion price; and (vi) that dividends in respect of the
Stock represented by the Depositary Shares to be redeemed or exchanged will
cease to accrue on such Redemption Date or Exchange Rate. In case less
than all the outstanding Depositary Shares are to be redeemed or exchanged,
the Depositary Shares to be so redeemed or exchanged shall be selected by
the Depositary by lot or PRO RATA (as nearly as practicable) or by any
other method, in each case, as determined by the Company in its sole
discretion to be equitable.
Notice having been mailed by the Depositary as aforesaid, from
and after the Redemption Date or Exchange Date, as the case may be (unless
the Company shall have failed to provide the funds or Capital Securities or
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Debt Securities necessary to redeem or exchange the Stock evidenced by the
Depositary Shares called for redemption or exchange), (i) dividends on the
shares of Stock so called for Redemption or exchange shall cease to accrue
from and after such date, (ii) the Depositary Shares being redeemed or
exchanged from such proceeds shall be deemed no longer to be outstanding,
(iii) all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price or the Capital
Securities or Debt Securities to be issued in exchange) shall, to the
extent of such Depositary Shares, cease and terminate, and (iv) upon
surrender in accordance with such redemption or exchange notice of the
Receipts evidencing any such Depositary Shares called for redemption or
exchange (properly endorsed or assigned for transfer, as the Depositary or
applicable law shall so require), such Depositary Shares shall be redeemed
or exchanged by the Depositary at a redemption price per Depositary Share
equal to [specify fraction] of the redemption price per share or market
value of Capital Securities or Debt Securities per Depositary Share paid in
respect of the shares of Stock so redeemed or exchanged plus all money and
other property, if any, represented by such Depositary Shares, including
all amounts paid by the Company in respect of dividends which on the
Redemption Date or Exchange Date have accumulated on the shares of Stock to
be so redeemed or exchanged and have not therefore been paid.
If fewer than all of the Depositary Shares evidenced by a Receipt
are called for redemption or exchange, the Depositary will deliver to the
holder of such Receipt upon its surrender to the Depositary, together with
the redemption payment or Capital Securities or Debt Securities issued upon
exchange, a new Receipt evidencing the Depositary Shares evidenced by such
prior receipt and not called for redemption or exchange.
ARTICLE III
Certain Obligations of
HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.
Any holder of a Receipt may be required from time to time to file such
proof of residence, or other matters or other information, to execute such
certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or delay the
registration of transfer, redemption or exchange, of any Receipt or the
withdrawal or conversion of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until
such proof or other information is filed or such certificates are executed
or such representations and warranties are made.
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SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES.
Holders of Receipts shall be obligated to make payments to the Depositary
of certain charges and expenses, as provided in Section 5.07. Registration
of transfer of any Receipt or any withdrawal of Stock and all money or
other property, if any, represented by the Depositary Shares evidenced by
such Receipt may be refused until any such payment due is made, and any
dividends, interest payments or other distributions may be withheld or any
part of or all the Stock or other property represented by the Depositary
Shares evidenced by such Receipt and not theretofore sold may be sold for
the account of the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale), and such dividends, interest
payments or other distributions or the proceeds of any such sale may be
applied to any payment of such charges or expenses, the holder of such
Receipt remaining liable for any deficiency.
SECTION 3.03. WARRANTY AS TO STOCK. The Company hereby
represents and warrants that the Stock, when issued, will be duly
authorized, validly issued, fully paid and nonassessable, subject to
Michigan Compiled Laws Section 450.1551. Such representation and warranty
shall survive the deposit of the Stock and the issuance of Receipts.
SECTION 3.04. WARRANTY AS TO RECEIPTS. The Company hereby
represents and warrants that the Receipts, when issued, will represent
legal and valid interests in the Stock. Such representation and warranty
shall survive the deposit of the Stock and the issuance of Receipts.
SECTION 3.05. WARRANTY AS TO CAPITAL SECURITIES. The Company
hereby represents and warrants that the Capital Securities issued upon
conversion of the Stock, when issued, will be duly authorized, validly
issued, fully paid and nonassessable, subject to Michigan Compiled Laws
Section 450.1551. Such representation and warranty shall survive the
conversion of the Stock into such Capital Securities.
SECTION 3.06. WARRANT AS TO DEBT SECURITIES. The Company hereby
represents and warrants that (i) Debt Securities issued upon exchange of
the Stock, when issued, will be duly authorized and, when such Debt
Securities are duly executed, authenticated and delivered in the manner
provided for in the applicable Indenture, such Debt Securities will
constitute valid and binding obligations of the Company entitled to the
benefits of the applicable Indenture and enforceable against the Company in
accordance with their terms, and (ii) the applicable Indenture has been
duly authorized by the Company and constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except in each case as enforcement thereof may be limited
by the receivership, conservatorship and supervisory powers of bank
regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
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general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and the availability of
equitable remedies. Such representation and warranty shall survive the
exchange of the Stock for such Debt Securities.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.04 such
amounts of such dividend or distribution as are, as nearly as practicable,
in proportion to the respective numbers of Depositary Shares evidenced by
the Receipts held by such holders; PROVIDED, HOWEVER, that in case the
Company or the Depositary shall be required to withhold and shall withhold
from any cash dividend or other cash distribution in respect of the Stocks
an amount on account of taxes, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a
fraction of one cent, and any balance not so distributable shall be held by
the Depositary (without liability for interest thereon) and shall be added
to and be treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH, RIGHTS, PREFERENCES
OR PRIVILEGES. Whenever the Depositary shall receive any distribution
other than cash, rights, preferences or privileges upon Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.04 such
amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot
be made proportionately among such record holders, or if for any other
reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after
consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it
deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the
securities or property thus received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds of any
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such sale shall, subject to Sections 3.01 and 3.02, be distributed or made
available for distribution, as the case may be, by the Depositary to record
holders of Receipts as provided by Section 4.01 in the case of a
distribution received in cash. The Company shall not make any distribution
of such securities or property to the Depositary and the Depositary shall
not make any distribution of such securities or property to the holders of
Receipts unless the Company shall have provided an opinion of counsel
stating that such securities or property have been registered under the
Securities Act or do not need to be registered in connection with such
distributions.
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES.
If the Company shall at any time offer or cause to be offered to the
persons in whose names Stock is recorded on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any
securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in such
manner as the Depositary may determine, either by the issue to such record
holders of warrants representing such rights, preferences or privileges or
by such other method as may be approved by the Depositary in its discretion
with the approval of the Company; PROVIDED, HOWEVER, that (i) if at the
time of issue or offer of any such rights, preferences or privileges the
Depositary determines that it is not lawful or (after consultation with the
Company) not feasible to make such rights, preferences or privileges
available to holders of Receipts by the issue of warrants or otherwise, or
(ii) if and to the extent so instructed by holders of Receipts who do not
desire to exercise such rights, preferences or privileges, then the
Depositary, in its discretion (with approval of the Company, in any case
where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or
the terms of such rights, preferences or privileges permit such transfer,
sell such rights, preferences or privileges at public or private sale, at
such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed by the Depositary to the record holders of Receipts entitled
thereto as provided by Section 4.01 in the case of a distribution received
in cash.
If registration under the Securities Act of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company agrees with the
Depositary that it will file promptly a registration statement pursuant to
the Securities Act with respect to such rights, preferences or privileges
and securities and use its reasonable best efforts and take all steps
reasonably available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights,
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preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available
to the holders of Receipts any right, preference or privilege to subscribe
for or to purchase any securities unless and until such registration
statement shall have become effective, or unless the offering and sale of
such securities to such holders are exempt from registration under the
provisions of the Securities Act, and the Company shall have provided to
the Depositary an opinion of counsel to such effect.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required
in order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees with the Depositary that the
Company will use its reasonable best efforts to take such action or obtain
such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders
to exercise such rights, preferences or privileges.
SECTION 4.04. NOTICE OF DIVIDENDS, ETC.; FIXING RECORD DATE FOR
HOLDERS OF RECEIPTS. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or
if rights, preferences or privileges shall at any time be offered, with
respect to Stock, or whenever the Depositary shall receive notice of any
meeting at which holders of Stock are entitled to vote or of which holders
of Stock are entitled to notice, or whenever the Depositary and the Company
shall decide it is appropriate, the Depositary shall in each such instance
fix a record date (which shall be the same date as the record date fixed by
the Company with respect to or otherwise in accordance with the terms of
the Stock) for the determination of the holders of Receipts who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give instructions
for the exercise of voting rights at any such meeting, or who shall be
entitled to notice of such meeting or for any other appropriate reasons.
SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record holders of
Receipts a notice that shall contain (i) such information as is contained
in such notice of meeting and (ii) a statement that the holders may,
subject to any applicable restrictions, instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of Stock represented
by their respective Depositary Shares (including an express indication that
instructions may be given to the Depositary to give a discretionary proxy
to a person designated by the Company) and a brief statement as to the
manner in which such instructions may be given. Upon the written request
of the holders of Receipts on the relevant record date, the Depositary
shall endeavor insofar as practicable to vote or cause to be voted, in
accordance with the instructions set forth in such requests, the maximum
-15-
<PAGE>
number of whole shares of Stock represented by the Depositary Shares
evidenced by all Receipts as to which any particular voting instructions
are received. The Company hereby agrees to take all reasonable action that
may be deemed necessary by the Depositary in order to enable the Depositary
to vote such Stock or cause such Stock to be voted. In the absence of
specific instructions from the holders of Receipts, the Depositary shall
endeavor insofar as practicable to vote or cause to be voted, in accordance
with the Company's recommendations, the maximum number of whole shares of
stock represented by the Depositary Shares evidenced by all Receipts as to
which no specific instructions have been given.
SECTION 4.06. CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par or
stated value, split-up, combination or any other reclassification of the
Stock, or upon any recapitalization, reorganization, merger or
consolidation affecting the Company or to which it is a party, the
Depositary may in its discretion with the approval of, and shall upon the
instructions of, the Company, and (in either case) in such manner as the
Depositary may deem equitable, (i) make such adjustments as are certified
by the Company in the fraction of an interest represented by one Depositary
Share in one share of Stock as may be necessary fully to reflect the
effects of such change in par or stated value, split-up, combination or
other reclassification of Stock, or of such recapitalization,
reorganization, merger or consolidation and (ii) treat any securities which
shall be received by the Depositary in exchange for or upon conversion of
or in respect of the Stock as new deposited securities so received in
exchange for or upon conversion or in respect of such Stock. In any such
case the Depositary may in its discretion, with the approval of the
Company, execute and deliver additional Receipts or may call for the
surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities. Anything to the
contrary herein notwithstanding, holders of Receipts shall have the right
from and after the effective date of any such change in par or stated
value, split-up, combination or other reclassification of the Stock or any
such recapitalization, reorganization, merger or consolidation to surrender
such Receipts to the Depositary with instructions to convert, exchange or
surrender the Stock represented thereby only into or for, as the case may
be, the kind and amount of shares of stock and other securities and
property and cash into which the Stock represented by such Receipts might
have been converted or for which such Stock might have been exchanged or
surrendered immediately prior to the effective date of such transaction.
SECTION 4.07. DELIVERY OF REPORTS. The Depositary shall furnish
to holders of Receipts any reports and communications received from the
Company that are received by the Depositary as the holder of Stock.
SECTION 4.08. LISTS OF RECEIPT HOLDERS. Promptly upon request
from time to time by the Company, the Depositary shall furnish to it a
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<PAGE>
list, as of the most recent practicable date, of the names, addresses and
holdings of Depositary Shares of all record holders of Receipts.
ARTICLE V
The Depositary, the Depositary's
AGENTS, THE REGISTRAR AND THE COMPANY
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER
BOOKS BY THE DEPOSITARY; REGISTRAR. Upon execution of this Deposit
Agreement, the Depositary shall maintain at the Depositary's Office,
facilities for the execution and delivery, registration and registration of
transfer, surrender and exchange of Receipts, and at the offices of the
Depositary's Agents, if any, facilities for the delivery, registration of
transfer, surrender and exchange of Receipts, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for
the registration and registration of transfer of Receipts, which books at
all reasonable times shall be open for inspection by the record holders of
Receipts; PROVIDED that any such holder requesting to exercise such right
shall certify to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner of
Depositary Shares evidenced by the Receipts.
The Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares
evidenced thereby. If the Receipts or the Depositary Shares evidenced
thereby or the Stock represented by such Depositary Shares shall be listed
on one or more national stock exchanges, the Depositary will appoint a
Registrar (acceptable to the Company) for registration of such Receipts or
Depositary Shares or Stock in accordance with any requirements of such
exchange. Such Registrar (which may be the Depositary if so permitted by
the requirements of any such exchange) may be removed and a substitute
registrar appointed by the Depositary upon the request or with the approval
of the Company. If the Receipts, Depositary Shares or Stock are listed on
one or more other stock exchanges, the Depositary will, at the request of
the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts,
Depositary Shares or Stock as may be required by law or applicable stock
exchange regulation.
-17-
<PAGE>
SECTION 5.02. PREVENTION OF OR DELAY IN PERFORMANCE BY THE
DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. Neither
the Depositary nor any Depositary's Agent nor any Registrar nor the Company
shall incur any liability to any holder of any Receipt if by reason of any
provision of any present or future law, or regulation thereunder, of the
United States of America or of any other governmental authority or, in the
case of the Depositary, the Depositary's Agent or the Registrar, by reason
of any provision, present or future, of the Company's Restated Articles of
Incorporation (including the Certificate) or by reason of any act of God or
war or other circumstance beyond the control of the relevant party, the
Depositary, the Depositary's Agent, the Registrar or the Company shall be
prevented or forbidden from, or subjected to any penalty on account of,
doing or performing any act or thing which the terms of this Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur liability to any
holder of a Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing which the terms of this
Deposit Agreement shall provide shall or may be done or performed, or (ii)
by reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement except, in the case of any such
exercise or failure to exercise discretion not caused as aforesaid, if
caused by the negligence, willful misconduct or bad faith of the party
charged with such exercise or failure to exercise.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE COMPANY. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company assumes any obligation
or shall be subject to any liability under this Deposit Agreement to
holders of Receipts other than for its negligence, willful misconduct or
bad faith.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of the
Stock, the Depositary Shares or the Receipts that in its opinion may
involve it in expense or liability unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable for any action or any failure to
act by it in reliance upon the written advice of legal counsel or
accountants, or information from any person presenting Stock for deposit,
any holder of a Receipt or any other person believed by it in good faith to
be competent to give such information. The Depositary, any Depositary's
Agent, any Registrar and the Company may each rely and shall each be
protected in acting upon any written notice, request, direction or other
document believed by it to be genuine and to have been signed or presented
by the proper party or parties.
-18-
<PAGE>
The Depositary shall not be responsible for any failure to carry
out any instruction to vote any of the shares of Stock or for the manner or
effect of any such vote made, as long as any such action or non-action is
in good faith. The Depositary undertakes, and any Registrar shall be
required to undertake, to perform such duties and only such duties as are
specifically set forth in this Deposit Agreement, and no implied covenants
or obligations shall be read into this Deposit Agreement against the
Depositary or any Registrar. The Depositary will indemnify the Company and
hold it harmless from any loss, liability or expense (including the
reasonable costs and expenses of defending itself) that may arise out of
acts performed or omitted by the Depositary or the Depositary's Agents in
connection with this Deposit Agreement due to its or their negligence,
willful misconduct or bad faith. The indemnification obligations of the
Depositary set forth in this Section 5.03 shall survive any termination of
this Deposit Agreement and any succession of any Depositary. The
Depositary, the Depositary's Agents, and any Registrar may own and deal in
any class of securities of the Company and its affiliates and in Receipts.
The Depositary may also act as transfer agent or registrar of any of the
securities of the Company and its affiliates.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY;
APPOINTMENT OF SUCCESSOR DEPOSITARY. The Depositary may at any time resign
as Depositary hereunder by delivering notice of its election to do so to
the Company, such resignation to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take
effect upon the appointment of a successor Depositary and its acceptance of
such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign
or be removed, the Company shall, within 60 days after the delivery of the
notice of resignation or removal, as the case may be, appoint a successor
Depositary, which shall be a bank or trust company having its principal
office in the United States of America and having a combined capital and
surplus of at least $50,000,000. If no successor Depositary shall have
been so appointed and have accepted appointment within 60 days after
delivery of such notice, the resigning or removed Depositary may petition
any court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall execute
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<PAGE>
and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and
deliver all right, title and interest in the Stock and any moneys or
property held hereunder to such successor, and shall deliver to such
successor a list of the record holders of all outstanding Receipts and such
records, books and other information in its possession relating thereto.
Any successor Depositary shall promptly mail notice of its appointment to
the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without
the execution or filing of any document or any further act, and notice
thereof shall not be required hereunder. Such successor Depositary may
authenticate the Receipts in the name of the predecessor Depositary or in
the name of the successor Depositary.
SECTION 5.05. CORPORATE NOTICES AND REPORTS. The Company agrees
that it will transmit to the record holders of Receipts, in each case at
the addresses furnished to it pursuant to Section 4.08, all notices and
reports (including financial statements) required by law or by the rules of
any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed, to be furnished to the record holders of
Receipts. Such transmission will be at the Company's expense.
SECTION 5.06. INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against,
and hold each of them harmless from, any loss, liability or expense
(including the reasonable costs and expenses of defending itself) which may
arise out of acts performed or omitted in connection with this Deposit
Agreement and the Receipts by the Depositary, any Registrar or any of their
respective agents (including any Depositary's Agent), except for any
liability arising out of negligence, willful misconduct or bad faith on the
respective parts of any such person or persons. The obligations of the
Company set forth in this Section 5.06 shall survive any succession of any
Depositary, Registrar or Depositary's Agent.
SECTION 5.07. CHARGES AND EXPENSES. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all
charges of the Depositary in connection with the initial deposit of the
Stock and the initial issuance of the Depositary Shares, all withdrawals of
shares of the Stock by owners of Depositary Shares, and any redemption or
exchange of the Stock at the option of the Company. All other transfer and
other taxes and governmental charges shall be at the expense of holders of
Receipts. If, at the request of a holder of Receipts, the Depositary
incurs charges or expenses for which it is not otherwise liable hereunder,
such holder will be liable for such charges and expenses. All other
charges and expenses of the Depositary and any Depositary's Agent hereunder
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<PAGE>
and of any Registrar (including, in each case, reasonable fees and expenses
of counsel) incident to the performance of their respective obligations
hereunder will be paid upon consultation and agreement between the
Depositary and the Company as to the amount and nature of such charges and
expenses. The Depositary shall present its statement for charges and
expenses to the Company at such intervals as the Company and the Depositary
may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. AMENDMENT. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time
be amended by agreement between the Company and the Depositary in any
respect that they may deem necessary or desirable; PROVIDED, HOWEVER, that
no such amendment (other than any change in the fees of any Depositary,
Registrar or transfer agent, which shall go into effect not sooner than
three months after notice thereof to the holders of the Receipts) that
shall materially and adversely alter the rights of the holders of Receipts
shall be effective unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares then outstanding.
Every holder of an outstanding Receipt at the time any such amendment
becomes effective shall be deemed, by continuing to hold such receipt, to
consent and agree to such amendment and to be bound by the Depositary
Agreement as amended thereby.
SECTION 6.02. TERMINATION. This Deposit Agreement may be
terminated by the Company at any time upon not less than 60 days prior
written notice to the Depositary, in which case, upon a day that is not
later than 30 days after the date of such notice, the Depositary shall
deliver or make available for delivery to each record holder of Receipts,
upon surrender of the Receipt or Receipts held by such record holder, such
number of whole or fractional shares of Stock represented by such Receipt
or Receipts. If the record holder of any Receipt or Receipts shall not
have so surrendered such Receipt or Receipts in exchange for whole or
fractional shares of Stock on or prior to the effective date of termination
of this Deposit Agreement, such record holder shall for all purposes,
including the payment of dividends, be deemed to be a record holder of the
appropriate number of whole or fractional shares of Stock previously
represented by such Receipt or Receipts and shall thereafter surrender to
the Company such Receipt or Receipts in exchange for whole or fractional
shares of Stock.
This Deposit Agreement shall automatically terminate after [(i)
all outstanding Depositary Shares have been redeemed pursuant to Section
2.09, (ii) each share of Stock shall have been converted into or exchanged
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<PAGE>
for, as the case may be, shares of Capital Securities or Debt Securities or
(iii)] there shall have been made a final distribution in respect of the
Stock in connection with any liquidation, dissolution or winding up of the
Company and such distribution shall have been distributed to the holders of
Depositary Shares pursuant to Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall
be discharged from all obligations under this Deposit Agreement except for
its obligations to the Depositary, any Depositary's Agent and any Registrar
under Sections 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto
on separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument.
SECTION 7.02. EXCLUSIVE BENEFIT OF PARTIES. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal
or equitable right, remedy or claim to any other person whatsoever.
SECTION 7.03. INVALIDITY OF PROVISIONS. In case any one or more
of the provisions contained in this Deposit Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.04. NOTICES. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by mail, or
by telegram or facsimile transmission confirmed by letter, addressed to the
Company at
Old Kent Financial Corporation
111 Lyon Street N.W.
Grand Rapids, Michigan 49503
Attention: Secretary
Telephone No.: (616) 771-5272
Facsimile No.: (616) 771-____
-22-
<PAGE>
or at any other address of which the Company shall have notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to have been
duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to the Depositary at
the Depositary's Office, at_______________________, or at any other address
of which the Depositary shall have notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail, or by
telegram or facsimile transmission confirmed by letter, addressed to such
record holder at the address of such record holder as it appears on the
books of the Depositary, or if such holder shall have filed with the
Depositary a written request that notices intended for such holder be
mailed to some other address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or facsimile
transmission shall be deemed to be effected at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case
of a telegram or facsimile transmission) is deposited, postage prepaid, in
a post office letter box. The Depositary or the Company may, however, act
upon any telegram or facsimile transmission received by it from the other
or from any holder of a Receipt, notwithstanding that such telegram or
facsimile transmission shall not subsequently be confirmed by letter or as
aforesaid.
SECTION 7.05. DEPOSITARY'S AGENTS. The Depositary may from time
to time appoint Depositary's Agents to act in any respect for the
Depositary for the purposes of this Deposit Agreement and may at any time
appoint additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the
Company of any such action.
The Company hereby also appoints the Depositary as Registrar and
transfer agent in respect of the Receipts and the Depositary hereby accepts
such appointments.
SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES. The holders of
Receipts from time to time shall be parties to this Deposit Agreement and
shall be bound by all of the terms and conditions hereof and of the
Receipts by acceptance of delivery thereof.
SECTION 7.07. TITLE. The Company, each Depositary, and any
agent of the Company or the Depositary may treat the registered owner of
any Depositary Share as the absolute owner thereof (whether or not any
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<PAGE>
payment in respect of such Depositary Share is overdue and notwithstanding
any notice to the contrary) for the purpose of making payment and all other
purposes.
SECTION 7.08. GOVERNING LAW. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the laws of
the State of New York.
SECTION 7.09. INSPECTION OF DEPOSIT AGREEMENT. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at the
Depositary's Office and the respective offices of the Depositary's Agents,
if any, by any holder of a Receipt.
SECTION 7.10. HEADINGS. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in
Exhibit A hereto have been inserted for convenience only and are not to be
regarded as a part of this Deposit Agreement or the Receipts or to have any
bearing upon the meaning or interpretation of any provision contained
herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Deposit Agreement as of the day and year first set forth
above, and all holders of Receipts shall become parties hereto by and upon
acceptance by them of delivery of Receipts issued in accordance with the
terms hereof.
OLD KENT FINANCIAL CORPORATION
Attested By
_____________________________ By
Attested By [Name of Depositary]
______________________________ By
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<PAGE>
Exhibit A
[FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY
SHARES
CERTIFICATE FOR ____________ DEPOSITARY SHARES
TDR
DEPOSITORY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING [TITLE OF] PREFERRED STOCK OF
OLD KENT FINANCIAL CORPORATION
CUSIP _________
INCORPORATED UNDER THE LAWS OF THE STATE OF MICHIGAN
SEE REVERSE FOR CERTAIN
DEFINITIONS
______________________, as Depositary (the "Depositary"), hereby certifies that
is the registered owner of
DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [specify fraction] of
one share of _______ Preferred Stock (the "Stock"), of Old Kent Financial
Corporation, a Michigan corporation (the "Corporation"), on deposit with the
Depositary, subject to the terms and entitled to the benefits of the Deposit
Agreement dated as of ______________, _____ (the "Deposit Agreement"), between
the Corporation and the Depositary. By accepting this Depositary Receipt, the
holder hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Depositary Receipt shall not be
valid or obligatory for any purpose or entitled to any benefits under the
Deposit Agreement unless it shall have been executed by the Depositary by the
manual signature of a duly authorized officer or, if executed in facsimile by
the Depositary, countersigned by a Registrar in respect of the Depositary
Receipts by a duly authorized officer thereof.
Dated: [Countersigned:
_______________________________ _______________________________________
Depositary Registrar
By By
Authorized Officer Authorized Officer]
<PAGE>
[FORM OF REVERSE OF RECEIPT]
OLD KENT FINANCIAL CORPORATION
OLD KENT FINANCIAL CORPORATION WILL FURNISH WITHOUT CHARGE TO
EACH RECEIPT HOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A
COPY OR SUMMARY OF THE CERTIFICATE OF DESIGNATION OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK OF THE [TITLE OF] PREFERRED STOCK OF OLD KENT
FINANCIAL CORPORATION. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE
DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
_____________________
For value received, ____________________ hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________
_______________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL
ZIP CODE OF ASSIGNEE
_________________________________________________________________
________________________________________________Depositary Shares
represented by the within Receipt, and do(es) hereby irrevocably constitute
and appoint ______________________ Attorney to transfer the said Depositary
Shares on the books of the within named Depositary with full power of
substitution in the premises.
Dated________________
__________________________________
NOTICE: The signature to the assignment must
correspond with the name as written upon the
face of this Receipt in every particular,
without alteration or enlargement or any
change whatever.
SIGNATURE GUARANTEED
___________________________
<PAGE>
EXHIBIT 4.9
Old Kent Financial Corporation
ISSUER
to
________________________________
TRUSTEE
SENIOR INDENTURE
Dated as of ___________________
Senior Debt Securities
<PAGE>
OLD KENT FINANCIAL CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939, as
amended, and Senior Indenture, dated as of March 1, 1992.
Trust Indenture Act Section Indenture Section
<Section> 310 (a)(1). . . . . . . . . . . . . . . . . . 606
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 606
(a)(3) . . . . . . . . . . . . . . . . . . . . . . 108
(a)(4) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . . . . 108
(c). . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
<Section> 311 (a) . . . . . . . . . . . . . . . . . . . 108
(b). . . . . . . . . . . . . . . . . . . . . . . . 108
(b)(2) . . . . . . . . . . . . . . . . . . . . . . 108
(c). . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
<Section> 312 (a) . . . . . . . . . . . . . . . . . . . 701, 702
(b). . . . . . . . . . . . . . . . . . . . . . . . 702
(c). . . . . . . . . . . . . . . . . . . . . . . . 702
<Section> 313 (a) . . . . . . . . . . . . . . . . . . . 703(a), 703(b)
(b)(1) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . . . . . . . . . . . . . 108
(c). . . . . . . . . . . . . . . . . . . . . . . . 703(c)
(d). . . . . . . . . . . . . . . . . . . . . . . . 703(c)
<Section> 314 (a) . . . . . . . . . . . . . . . . . . 704
(b). . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d). . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e). . . . . . . . . . . . . . . . . . . . . . . . 102
<Section> 315 (a) . . . . . . . . . . . . . . . . . . . 108
(b). . . . . . . . . . . . . . . . . . . . . . . . 611
(c). . . . . . . . . . . . . . . . . . . . . . . . 108
(d). . . . . . . . . . . . . . . . . . . . . . . . 108
(d)(1) . . . . . . . . . . . . . . . . . . . . . . 108
(d)(2) . . . . . . . . . . . . . . . . . . . . . . 108
(d)(3) . . . . . . . . . . . . . . . . . . . . . . 108
(e). . . . . . . . . . . . . . . . . . . . . . . . 108
<Section> 316 (a) . . . . . . . . . . . . . . . . . . . 104
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . . . . 508
<Section> 317 (a)(1) . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 504
(b). . . . . . . . . . . . . . . . . . . . . . . . 1003
<Section> 318 (a) . . . . . . . . . . . . . . . . . . . 108
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of this Senior Indenture.
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<PAGE>
TABLE OF CONTENTS
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 101. DEFINITIONS . . . . . . . . . . . . . . . . . . 1
Act. . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . 2
Affiliate. . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . 2
Bank . . . . . . . . . . . . . . . . . . . . . . . . 3
Bearer Security. . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . 3
Capital Stock. . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . 3
Company. . . . . . . . . . . . . . . . . . . . . . . 3
Company Request and Company Order. . . . . . . . . . 4
Constituent Bank . . . . . . . . . . . . . . . . . . 4
Corporation. . . . . . . . . . . . . . . . . . . . . 4
Coupon . . . . . . . . . . . . . . . . . . . . . . . 4
Currency or Money. . . . . . . . . . . . . . . . . . 4
Currency Indexed Note. . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . 4
Dollars or $ . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . 4
Government Obligations . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture. . . . . . . . . . . . . . . . . . . . . . 5
Independent Public Accountants . . . . . . . . . . . 5
Indexed Security . . . . . . . . . . . . . . . . . . 5
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . 6
Legal Holiday . . . . . . . . . . . . . . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Office or Agency . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate. . . . . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . . . . 6
Original Issue Discount Security . . . . . . . . . . 6
Outstanding. . . . . . . . . . . . . . . . . . . . . 6
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<PAGE>
Paying Agent . . . . . . . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . . . . . . . 8
Place of Payment . . . . . . . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . . . . . . . . . 8
Principal Constituent Bank . . . . . . . . . . . . . . . 8
Redemption Date. . . . . . . . . . . . . . . . . . . . . 8
Redemption Price . . . . . . . . . . . . . . . . . . . . 8
Registered Security. . . . . . . . . . . . . . . . . . . 8
Regular Record Date. . . . . . . . . . . . . . . . . . . 8
Responsible Officer. . . . . . . . . . . . . . . . . . . 8
Security or Securities . . . . . . . . . . . . . . . . . 9
Security Register and Security Registrar . . . . . . . . 9
Special Record Date. . . . . . . . . . . . . . . . . . . 9
Stated Maturity. . . . . . . . . . . . . . . . . . . . . 9
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act. . . . . . . . . . . . . . . . . . . 9
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 9
United States. . . . . . . . . . . . . . . . . . . . . . 10
United States Alien. . . . . . . . . . . . . . . . . . . 10
U.S. Depository or Depository. . . . . . . . . . . . . . 10
Vice President . . . . . . . . . . . . . . . . . . . . . 10
Voting Stock . . . . . . . . . . . . . . . . . . . . . . 10
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS. . . . . . .10
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. . . . . .11
Section 104. ACTS OF HOLDERS . . . . . . . . . . . . . . . . .11
Section 105. NOTICES, ETC. TO TRUSTEE AND COMPANY. . . . . . .14
Section 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER . . . . .14
Section 107. LANGUAGE OF NOTICES . . . . . . . . . . . . . . .15
Section 108. CONFLICT WITH TRUST INDENTURE ACT . . . . . . . .16
Section 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS. . . . .16
Section 110. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . .16
Section 111. SEPARABILITY CLAUSE . . . . . . . . . . . . . . .16
Section 112. BENEFITS OF INDENTURE . . . . . . . . . . . . . .16
Section 113. GOVERNING LAW . . . . . . . . . . . . . . . . . .16
Section 114. LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . .16
Section 115. COUNTERPARTS. . . . . . . . . . . . . . . . . . .17
ARTICLE TWO - SECURITIES FORMS . . . . . . . . . . . . . . . . . . . . .17
Section 201. FORMS GENERALLY . . . . . . . . . . . . . . . . . . .17
Section 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION . . .18
Section 203. SECURITIES IN GLOBAL FORM. . . . . . . . . . . . . . .18
ARTICLE THREE - THE SECURITIES . . . . . . . . . . . . . . . . . . . . .19
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES . . . . . . . . .19
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Section 302. CURRENCY; DENOMINATIONS . . . . . . . . . . . . . . .23
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING . . . .23
Section 304. TEMPORARY SECURITIES . . . . . . . . . . . . . . . . .25
Section 305. REGISTRATION, TRANSFER AND EXCHANGE . . . . . . . . .26
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES . . .29
Section 307. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL
AMOUNTS; RIGHTS TO INTEREST AND CERTAIN
ADDITIONAL AMOUNTS PRESERVED. . . . . . . . . . . . .31
Section 308. PERSONS DEEMED OWNERS . . . . . . . . . . . . . . . .33
Section 309. CANCELLATION . . . . . . . . . . . . . . . . . . . . .33
Section 310. COMPUTATION OF INTEREST . . . . . . . . . . . . . . .34
ARTICLE FOUR - SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . . . 34
Section 401. SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . 34
Section 402. SATISFACTION, DISCHARGE AND DEFEASANCE. . . . . . . . 36
Section 403. APPLICATION OF TRUST MONEY. . . . . . . . . . . . . . 38
ARTICLE FIVE - REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 501. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . 38
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. . 40
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE . . . . . . . . . . . . . . . . . . . . . 41
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM. . . . . . . . . . . 42
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF SECURITIES OR COUPONS . . . . . . . . . . . . . . 43
Section 506. APPLICATION OF MONEY COLLECTED. . . . . . . . . . . . 44
Section 507. LIMITATIONS ON SUITS. . . . . . . . . . . . . . . . . 44
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL
AND ANY PREMIUM, INTEREST AND ADDITIONAL AMOUNTS. . . 45
Section 509. RESTORATION OF RIGHTS AND REMEDIES. . . . . . . . . . 45
Section 510. RIGHTS AND REMEDIES CUMULATIVE. . . . . . . . . . . . 45
Section 511. DELAY OR OMISSION NOT WAIVER. . . . . . . . . . . . . 46
Section 512. CONTROL BY HOLDERS OF SECURITIES. . . . . . . . . . . 46
Section 513. WAIVER OF PAST DEFAULTS . . . . . . . . . . . . . . . 46
Section 514. WAIVER OF STAY OR EXTENSION LAWS. . . . . . . . . . . 47
Section 515. UNDERTAKING FOR COSTS . . . . . . . . . . . . . . . . 47
ARTICLE SIX - THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . 48
Section 601. CERTAIN RIGHTS OF TRUSTEE . . . . . . . . . . . . . . 48
Section 602. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES . . . . . . . . . . . . . . . . . . . . . 49
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<PAGE>
Section 603. MAY HOLD SECURITIES . . . . . . . . . . . . . . . . . 50
Section 604. MONEY HELD IN TRUST . . . . . . . . . . . . . . . . . 50
Section 605. COMPENSATION AND REIMBURSEMENT. . . . . . . . . . . . 50
Section 606. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTEREST . . . . . . . . . . . . . . . . . . . . . . 51
Section 607. RESIGNATION AND REMOVA; APPOINTMENT OF SUCCESSOR. . . 51
Section 608. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. . . . . . . . 53
Section 609. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS . . . . . . . . . . . . . . . . . . . . . . 55
Section 610. APPOINTMENT OF AUTHENTICATING AGENT . . . . . . . . . 55
Section 611. NOTICE OF DEFAULT . . . . . . . . . . . . . . . . . . 57
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY . . . . . . . . . . . . . . . . . . . . . . . 58
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS . . . . . . . . . . . . . . . . . . . . . . . 58
Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS . . . . . . . . . . . . . . . . . . . . . . . 58
Section 703. REPORTS BY TRUSTEE. . . . . . . . . . . . . . . . . . 59
Section 704. REPORTS BY COMPANY. . . . . . . . . . . . . . . . . . 59
ARTICLE EIGHT - CONSOLIDATION, MERGER AND SALES. . . . . . . . . . . . . 60
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. 60
Section 802. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY. . . . . . . 61
ARTICLE NINE - SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . 61
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. . 61
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS . . . 63
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES. . . . . . . . . 64
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.. . . . . . . . . . 64
Section 905. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES. . 65
Section 906. CONFORMITY WITH TRUST INDENTURE ACT . . . . . . . . . 65
ARTICLE TEN - COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 1001. PAYMENT OF PRINCIPAL AND ANY PREMIUM, INTEREST
AND ADDITIONAL AMOUNTS . . . . . . . . . . . . . . . 65
Section 1002. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . 66
Section 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. . 67
Section 1004. ADDITIONAL AMOUNTS . . . . . . . . . . . . . . . . . 69
Section 1005. LIMITATION ON LIENS. . . . . . . . . . . . . . . . . 69
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<PAGE>
Section 1006. LIMITATION UPON SALE OR ISSUANCE OF CAPITAL STOCK OF
CERTAIN SUBSIDIARIES . . . . . . . . . . . . . . . . 70
Section 1007. LIMITATION ON CERTAIN ACQUISITIONS . . . . . . . . . 71
Section 1008. CORPORATE EXISTENCE. . . . . . . . . . . . . . . . . 71
Section 1009. WAIVER OF CERTAIN COVENANTS. . . . . . . . . . . . . 72
Section 1010. COMPANY STATEMENT AS TO COMPLIANCE, NOTICE OF
CERTAIN DEFAULTS . . . . . . . . . . . . . . . . . . 72
ARTICLE ELEVEN - REDEMPTION OF SECURITIES. . . . . . . . . . . . . . . . 73
Section 1101. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . 73
Section 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. . . . . . . . 73
Section 1103. SELECTION BY TRUSTEE OF SECUIITIES TO BE REDEEMED. . 73
Section 1104. NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . 74
Section 1105. DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . 75
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE. . . . . . . . 76
Section 1107. SECURITIES REDEEMED IN PART. . . . . . . . . . . . . 77
ARTICLE TWELVE - SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . 77
Section 1201. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . 77
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES77
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. . . . . . 78
ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS. . . . . . . . . . 79
Section 1301. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . 79
ARTICLE FOURTEEN - SECURITIES IN FOREIGN CURRENCIES . . . . . . . . . . . . . 79
Section 1401. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . 79
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . . . . . 80
Section 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. . . . . . 80
Section 1502. CALL, NOTICE AND PLACE OF MEETINGS . . . . . . . . . 80
Section 1503. PERSONS ENTITLED TO VOTE AT MEETINGS . . . . . . . . 81
Section 1504. QUORUM; ACTION . . . . . . . . . . . . . . . . . . . 81
Section 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS . . . . . . . . . . . . . . 82
Section 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. . . 83
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<PAGE>
INDENTURE, dated as of ______________ (the "Indenture"), between
Old Kent Financial Corporation, a corporation duly organized and existing
under the laws of the State of Michigan (hereinafter called the "Company"),
having its principal executive office located at 111 Lyon Street, NW,
Grand Rapids, Michigan 49503, and ________________, a _________corporation
(hereinafter called the "Trustee"), having its Corporate Trust Office
located at_______________________________________.
R E C I T A L S :
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (hereinafter
called the "Securities"), unlimited as to principal amount, to bear such
rates of interest, to mature at such time or times, to be issued in one or
more series and to have such other provisions as shall be fixed as
hereinafter provided.
The Company has duly authorized the execution and delivery of
this Indenture. All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder, the valid obligations of the
Company, in accordance with their terms, have been done.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder that are required
to be part of this Indenture and, to the extent applicable, shall be
governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof it is mutually
covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities and any Coupons (as herein defined) as follows:
<PAGE>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. DEFINITIONS.
Except as otherwise expressly provided in or pursuant to this
Indenture or unless the context otherwise requires, for all purposes of
this Indenture:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(4) the words "herein," "hereof," "hereto" and "hereunder"
and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision; and
(5) the word "or" is always used inclusively (for example,
the phrase "A or B" means "A or B or both," not "either A or B
but not both").
Certain terms used principally in certain Articles hereof are
defined in those Articles.
"Act," when used with respect to any Holders, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required hereby or by any Security, under circumstances specified herein or
therein, to be paid by the Company in respect of certain taxes imposed on
Holders specified therein and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
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<PAGE>
indirect common control with such specified Person. For the purposes of
this definition, "control," when used with respect to any specified Person,
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
the meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 610 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language
of the place of publication or in the English language, customarily
published on each day that is a Business Day in the place of publication,
whether or not published on days that are Legal Holidays in the place of
publication and of general circulation in each place in connection with
which the term is used or in the financial community of each such place.
Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in
different newspapers in the same city meeting the foregoing requirements
and in each case on any day that is a Business Day in the place of
publication.
"Bank" means (i) any institution organized under the laws of the
United States of America, any State of the United States of America, the
District of Columbia, any territory of the United States of America, Puerto
Rico, Guam, American Samoa or the Virgin Islands which (a) accepts deposits
that the depositor has a legal right to withdraw on demand and (b) engages
in the business of making commercial loans, and (ii) any trust company
organized under any of the foregoing laws.
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company
or any committee of that board duly authorized to act generally or in any
particular respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions,
certified by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day," with respect to any Place of Payment or other
location, means each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a Legal Holiday in such Place of Payment or other location.
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<PAGE>
"Capital Stock" means, as to shares of a particular corporation,
outstanding shares of stock of any class whether now or hereafter
authorized, irrespective of whether such class shall be limited to a fixed
sum or percentage in respect of the rights of the holders thereof to
participate in dividends and in the distribution of assets upon the
voluntary liquidation, dissolution or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934 or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person, and any other
obligor upon the Securities.
"Company Request" and "Company Order" mean, respectively, a
written request or order, as the case may be, signed in the name of the
Company by the Chairman of the Board of Directors, a Vice Chairman, the
President or a Vice President and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Company, and delivered to
the Trustee.
"Constituent Bank" means any Subsidiary that is a Bank.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of original execution of this
Indenture is located at the address specified in the first paragraph of
this instrument.
"Corporation" includes corporations and, except for purposes of
Article Eight, associations, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency" or "Money," with respect to any payment, deposit or
other transfer in respect of the principal of or any premium or interest on
or any Additional Amounts with respect to any Security, means the unit or
units of legal tender for the payment of public and private debts (or any
composite thereof) in which such payment, deposit or other transfer is
required to be made by or pursuant to the terms hereof and, with respect to
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<PAGE>
any other payment, deposit or transfer pursuant to or contemplated by the
terms hereof, means Dollars.
"Currency Indexed Note" means any Security with the amount of
principal payments determined by reference to an index Currency.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of
America.
"Event of Default" has the meaning specified in Section 501.
"Government Obligations," with respect to any Security, means (i)
direct obligations of the government or governments which issued the
Currency in which the principal of or any premium or interest on such
Security or any Additional Amounts in respect thereof shall be payable, in
each case where the payment or payments thereunder are supported by the
full faith and credit of such government or governments or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of such government or governments, in each case where the
payment or payments thereunder are unconditionally guaranteed as a full
faith and credit obligation by such government or governments, and which,
in the case of (i) or (ii), are not callable or redeemable at the option of
the issuer or issuers thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal of
or other amount with the holder respect to any such Government Obligation
held by such custodian for the account of a depository receipt, PROVIDED
that (except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal
of or other amount with respect to the Government Obligation evidenced by
such depository receipt.
"Holder," in the case of any Registered Security, means the
Person in whose name such Security is registered in the Security Register
and, in the case of any Bearer Security, means the bearer thereof and, in
the case of any Coupon, means the bearer thereof
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and, with respect
to any Security, by the terms and provisions of such Security and any
Coupon appertaining thereto established pursuant to Section 301 (as such
terms and provisions may be amended pursuant to the applicable provisions
hereto.
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"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other obligor under
the Securities or the Coupons, are independent public accountants within
the meaning of the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder, who may be the
independent public accountants regularly retained by the Company or who may
be other independent public accountants. Such accountants or firm shall be
entitled to rely upon any Opinion of Counsel as to the interpretation of
any legal matters relating to the Indenture or certificates required to be
provided hereunder.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.
"Interest," with respect to any Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Legal Holiday," with respect to any Place of Payment or other
location, means a Saturday, a Sunday or a day on which banking institutions
or trust companies in such Place of Payment or other location are not
authorized or obligated to be open.
"Maturity," with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due
and payable as provided in or pursuant to this Indenture, whether at the
Stated Maturity or by declaration of acceleration, notice of redemption,
notice of option to elect repayment or otherwise, and includes any
Redemption Date.
"Office or Agency," with respect to any Securities, means an
office or agency of the Company maintained or designated in a Place of
Payment for such Securities pursuant to Section 1002 or any other office or
agency of the Company maintained or designated for such Securities pursuant
to Section 1002 or, to the extent designated or required by Section 1002 in
lieu of such office or agency, the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, that complies with the requirements of Section
314(e) of the Trust Indenture Act and is delivered to the Trustee.
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"Opinion of Counsel" means a written opinion of counsel, who may
be an employee of or counsel for the Company or other counsel who shall be
reasonably acceptable to the Trustee, that complies with the requirements
of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued
pursuant to this Indenture which provides for declaration of an amount less
than the principal face amount thereof to be due and payable upon
acceleration pursuant to Section 502.
"Outstanding," when used with respect to any Securities, means,
as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(a) any such Security theretofore canceled by the Trustee
or the Security Registrar or delivered to the Trustee or the
Security Registrar for cancellation;
(b) any such Security or portions thereof for whose payment
at the Maturity thereof Money in the necessary amount has been
theretofore deposited pursuant hereto with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities and any
Coupons appertaining thereto, PROVIDED that, if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(c) any such Security with respect to which the Company has
effected defeasance pursuant to Section 402 hereof; and
(d) any such Security which has been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, unless there shall have been presented to the Trustee
proof satisfactory to it that such Security is held by a bona
fide purchaser in whose hands such Security is a valid obligation
of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders of Securities for quorum purposes, (i) the
principal amount of an Original Issue Discount Security that may be counted
in making such determination and that shall be deemed to be Outstanding for
such purposes shall be equal to the amount of the principal thereof that
pursuant to the terms of such Original Issue Discount Security would be
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declared (or shall have been declared to be) due and payable upon a
declaration of acceleration thereof pursuant to Section 502 at the time of
such determination, (ii) the principal amount of any Security denominated
other than in Dollars that may be counted in making such determination and
that shall be deemed Outstanding for such purpose shall be equal to the
Dollar equivalent, determined by the Company as of the date the Security is
originally issued by the Company, of the principal amount (or, in the case
of an Original Issue Discount Security, the Dollar equivalent as of such
date of original issuance of the amount determined as in clause (i) above)
of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination and that shall be deemed
Outstanding for such purpose shall be equal to the principal face amount of
such Indexed Security at original issuance, unless otherwise provided in or
pursuant to this Indenture, and (iv) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such
other obligor, shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in
making any such determination or relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded. Securities so
owned which shall have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee
(A) the pledgee's right so to act with respect to such Securities and (B)
that the pledgee is not the Company or any other obligor upon the
Securities or any Coupons appertaining thereto or any Affiliate of the
Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of, or any premium or interest on, or any Additional Amounts
with respect to any Security or any Coupon on behalf of the Company.
Unless otherwise provided in or pursuant to this Indenture, the Company
shall be the Paying Agent for each series of Securities and any Coupons
relating thereto.
"Person" means any individual, Corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," with respect to any Security, means the place
or places where the principal of, or any premium or interest on, or any
Additional Amounts with respect to such Security is payable as provided in
or pursuant to this Indenture.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a lost, destroyed, mutilated or stolen Security
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or any Security to which a mutilated, destroyed, lost or stolen Coupon
appertains shall be deemed to evidence the same debt as the lost,
destroyed, mutilated or stolen Security or the Security to which a
mutilated, destroyed, lost or stolen Coupon appertains.
"Principal Constituent Bank" means a Constituent Bank the
consolidated assets of which constitute 25 percent or more of the Company's
consolidated assets as determined from the most recent statement of
financial condition of the Company.
"Redemption Date," with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price," with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed as
determined by or pursuant to this Indenture.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any,
specified in or pursuant to this Indenture as the "Regular Record Date."
"Responsible Officer" means, when used with respect to the
Trustee, any officer in its Corporate Trust Office, including without
limitation any vice president, and assistant vice president, any assistant
secretary or any officer of the Trustee customarily performing functions
similar to those performed by the above-designated officers, and also
means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Security" or "Securities" means any Security or Securities, as
the case may be, authenticated and delivered under this Indenture;
PROVIDED, HOWEVER, that, if at any time there is more than one Person
acting as Trustee under this Indenture, "Securities," with respect to any
such Person, shall mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
on any Registered Security means a date fixed by the Trustee pursuant to
Section 307.
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"Stated Maturity," with respect to any Security or any
installment of principal thereof or interest thereon or any Additional
Amounts with respect thereto, means the date established by or pursuant to
this Indenture as the fixed date on which the principal of such Security or
such installment of principal or interest is or such Additional Amounts are
due and payable.
"Subsidiary" means any Corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50 percent of the shares of Voting Stock.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a
particular provision thereof shall mean such act or provision, as the case
may be, as amended or replaced from time to time or as supplemented from
time to time by rules or regulations adopted by the Commission under or in
furtherance of the purposes of such act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter 'Trustee" shall
mean each Person who is then a Trustee hereunder; PROVIDED, HOWEVER, that
if at any time there is more than one such Person, "Trustee" shall mean
each such Person and as used with respect to the Securities of any series
shall mean the Trustee with respect to the Securities of such series.
"United States," except as otherwise provided herein or in any
Security, means the United States of America (including the states thereof
and the District of Columbia), its territories and possessions and other
areas subject to its jurisdiction.
"United States Alien," except as otherwise provided in or
pursuant to this Indenture, means any Person who, for United States federal
income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust, or
a foreign partnership one or more of the members of which is, for United
States federal income tax purposes, a foreign corporation, a non-resident
alien individual or a non-resident alien fiduciary of a foreign estate or
trust.
"U.S. Depository" or "Depository" means, with respect to any
Security issuable or issued in the form of one or more global Securities,
the Person designated as U.S. Depository or Depository by the Company in or
pursuant to this Indenture, which Person must be, to the extent required by
applicable law or regulation, a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and, if so provided with
respect to any Security, any successor to such Person. If at any time
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there is more than one such Person, "U.S. Depository" or "Depository" shall
mean, with respect to any Securities, the qualifying entity which has been
appointed with respect to such Securities.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "Vice President."
"Voting Stock" means stock of a Corporation of the class or
classes having general voting power under ordinary circumstances to elect
at least a majority of the board of directors, managers or trustees of such
Corporation provided that, for the purposes hereof, stock which carries
only the right to vote conditionally on the happening of an event shall not
be considered voting stock whether or not such event shall have happened.
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent, if any, have
been complied with, except that in the case of any such application or
request as to which the furnishing of such documents or any of them is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion
need be furnished.
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters,
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upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture or any Security, they may, but need
not, be consolidated and form one instrument.
Section 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this
Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly
appointed in writing. If, but only if, Securities of a series
are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided in or pursuant to this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities
of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with
the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and
the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting.
Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture
and (subject to Section 315 of the Trust Indenture Act)
conclusive in favor of the Trustee and the Company and any agent
of the Trustee or the Company, if made in the manner provided in
this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1506.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder,
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including a U.S. Depository that is a Holder of a global
Security, may make, give or take, by a proxy or proxies, duly
appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or
pursuant to this Indenture to be made, given or taken by Holders,
and a U.S. Depository that is a Holder of a global Security may
provide its proxy or proxies to the beneficial owners of
interests in any such global Security through such U.S.
Depository's standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in
any permanent global Security held by a U.S. Depository entitled
under the procedures of such U.S. Depository to make, give or
take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent,
waiver or other action provided in or pursuant to this Indenture
to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed
proxy or proxies, and only such Persons, shall be entitled to
make, give or take such request, demand, authorization,
direction, notice, consent, waiver or other action, whether or
not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent,
waiver or other action shall be valid or effective if made, given
or taken more than 90 days after such record date.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner
which the Trustee deems sufficient and in accordance with such
reasonable rules as the Trustee may determine; and the Trustee
may in any instance require further proof with respect to any of
the matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of the
commencement and the date of the termination of holding the same,
shall be proved by the Security Register.
(d) The ownership, principal amount and serial numbers of
Bearer Securities held by any Person, and the date of the
commencement and the date of the termination of holding the same,
may be proved by the production of such Bearer Securities or by a
certificate executed, as depositary, by any trust company, bank,
banker or other depositary reasonably acceptable to the Company
and the Trustee, wherever situated, if such certificate shall be
deemed by the Company and the Trustee to be satisfactory, showing
that at the date therein mentioned such Person had on deposit
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with such depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect
of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding.
The ownership, principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or
writing and the date of the commencement and the date of the
termination of holding the same may also be proved in any other
manner which the Company and the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may
at its option (but is not obligated to), by Board Resolutions,
fix in advance a record date, which record date shall be at least
two Business Days prior to such solicitation, for the
determination of Holders of Registered Securities entitled to
give such request, demand, authorization, direction, notice,
consent, waiver or other Act. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record
date, but only the Holders of Registered Securities of record at
the close of business on such record date shall be deemed to be
Holders for the purpose of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such
record date; PROVIDED that no such authorization, agreement or
consent by the Holders of Registered Securities shall be deemed
effective unless it shall become effective pursuant to the
provisions of this Indenture not later than 6 months after the
record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security
shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon,
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whether or not notation of such action is made upon such
Security.
Section 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders, or other document provided or permitted by this
Indenture to be made upon, given or furnished to or filed with,
(1) the Trustee by any Holder or the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing, or transmitted by facsimile transmission
(confirmed by guaranteed overnight courier), to or with the
Trustee at its Corporate Trust Office or any other address
previously furnished in writing to the Company by the Trustee; or
(2) the Company by the Trustee or any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, or transmitted by facsimile transmission (confirmed by
guaranteed overnight courier), to the Company addressed to the
attention of its Treasurer at the address of its principal office
specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by
the Company.
Section 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of
Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class
postage prepaid, to each Holder of a Registered Security affected
by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such Notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized
Newspaper in The City of New York and, if such Securities are
then listed on any stock exchange outside the United States, in
an Authorized Newspaper in such city as the Company shall advise
the Trustee that such stock exchange so requires, on a Business
Day, at least twice, the first such publication to be not earlier
than the earliest date and not later than the latest date
prescribed for the giving of such notice.
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In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder of a Registered Security
shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of
Bearer Securities given as provided herein. Any notice which is mailed in
the manner herein provided shall be conclusively presumed to have been duly
given or provided. In the case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other
cause it shall be impracticable to publish any notice to Holders of Bearers
Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall
constitute sufficient notice to such Holders for every purpose hereunder.
Neither failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders of Securities
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
Section 107. LANGUAGE OF NOTICES.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in
the English language, except that, if the Company so elects, any published
notice may be in an official language of the country of publication.
Section 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with any
duties under any required provision of the Trust Indenture Act imposed
hereon by Section 318(c) thereof, such required provision shall control.
Section 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof
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Section 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture, any Security or any
Coupon shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 112. BENEFITS OF INDENTURE.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent and their successors hereunder and the
Holders of Securities or Coupons, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 113. GOVERNING LAW.
This Indenture, the Securities and any Coupons shall be governed
by and construed in accordance with the laws of the State of
applicable to agreements made or instruments entered into and, in each
case, performed in said state.
Section 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
Repayment Date, Stated Maturity or Maturity of any Security or Coupon shall
be a Legal Holiday at any Place of Payment, then (notwithstanding any other
provision of this Indenture, any Security or any Coupon other than a
provision in any Security or Coupon that specifically states that such
provision shall apply in lieu of this Section) payment need not be made at
such Place of Payment on such date, but may be made on the next succeeding
day that is a Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, Redemption Date or
Repayment Date or at the Stated Maturity or Maturity, and no interest shall
accrue on the amount payable on such date or at such time for the period
from and after such Interest Payment Date, Redemption Date, Repayment Date,
Stated Maturity or Maturity, as the case may be.
Section 115. COUNTERPARTS.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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ARTICLE TWO
SECURITIES FORMS
Section 201. FORMS GENERALLY.
Each Registered Security, Bearer Security, Coupon and temporary
global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by or pursuant to this Indenture or any indenture supplemental hereto and
may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with
the rules of any securities exchange on which such Security may be listed
or as may, consistently herewith, be determined by the officers executing
such Security or Coupon as evidenced by their execution of such Security or
Coupon. The Company shall provide any such legends or endorsements to the
Trustee in writing.
Unless otherwise provided in or pursuant to this Indenture, the
Securities shall be issuable in registered form without Coupons and shall
not be issuable upon the exercise of warrants.
Unless issued in registered form, definitive Securities and
definitive Coupons shall be printed, lithographed or engraved or produced
by any combination of these methods on a steel engraved border or steel
engraved borders or may be produced in any other manner not inconsistent
with the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities
or Coupons.
Section 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 610, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within mentioned Indenture.
Dated: ______________________________,
as Trustee
By
Authorized Signatory
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Section 203. SECURITIES IN GLOBAL FORM.
If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series
(or such lesser amount as is permitted by the terms thereof) from time to
time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be
increased or reduced to reflect exchanges. Any endorsement of any Security
in global form to reflect the amount, or any increase or decrease in the
amount, or changes in the rights of Holders, of Outstanding Securities
represented thereby shall be made in such manner and by such Person or
Persons as shall be specified therein or in the Company Order to be
delivered pursuant to Section 303 or 304 with respect thereto. Subject to
the provisions of Section 303 and, if applicable, Section 304, the Trustee
shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to a Security in global form shall
be in writing but need not be accompanied by or contained in an Officers'
Certificate and need not be accompanied by an Opinion of Counsel.
ARTICLE THREE
THE SECURITIES
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution
and set forth in an Officers' Certificate, or established in one or more
indentures supplemental hereto,
(1) the title of such Securities and the series in which
such Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which
may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration or
transfer of, or in exchange for, or in lieu of, other Securities
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of such series pursuant to Section 304, 305, 306, 905 or 1107 or
the terms of such Securities);
(3) whether such Securities are to be issuable as
Registered Securities, as Bearer Securities or alternatively as
Bearer Securities and Registered Securities, and whether the
Bearer Securities are to be issuable with Coupons, without
Coupons or both, and any restrictions applicable to the offer,
sale or delivery of the Bearer Securities and the terms, if any,
upon which Bearer Securities may be exchanged for Registered
Securities and vice versa;
(4) if any of such Securities are to be issuable in global
form, when any of such Securities are to be issuable in global
form and (i) whether beneficial owners of interests in any such
global Security may exchange such interest for Securities of the
same series and of like tenor and of any authorized form and
denomination, and the circumstances under which any such
exchanges may occur, if other than in the manner specified in
Section 305, and (ii) the name of the Depository or the U.S.
Depository, as the case may be, with respect to any global
Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such
Bearer Security or global Security shall be dated (if other than
the date of original issuance of the first of such Securities to
be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a
temporary Bearer Security in global form payable in respect of an
Interest Payment Date therefor prior to the exchange, if any, of
such temporary Bearer Security for definitive Securities shall be
paid to any clearing organization with respect to the portion of
such temporary Bearer Security held for its account and, in such
event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a
clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date;
(7) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the
principal of such Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such
rate or rates are to be determined, the date or dates, if any,
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from which such interest shall accrue or the method or methods,
if any, by which such date or dates are to be determined, the
Interest Payment Dates, if any, on which such interest shall be
payable and the Regular Record Date, if any, for the interest
payable on Registered Securities on any Interest Payment Date,
whether and under what circumstances Additional Amounts on such
Securities or any of them shall be payable, and the basis upon
which interest shall be calculated if other than that of a 360-
day year of twelve 30-day months;
(9) if in addition to or other than the City of Grand
Rapids, Michigan, the place or places where the principal of any
premium and interest on or any Additional Amounts with respect to
such Securities shall be payable, any of such Securities that are
Registered Securities may be surrendered for registration of
transfer, any of such Securities may be surrendered for exchange
and notices or demands to or upon the Company in respect of such
Securities and this Indenture may be served;
(10) whether any of such Securities are to be redeemable at
the option of the Company and, if so the period or periods within
which, the price or prices at which and the other terms and
conditions upon which such Securities may be redeemed, in whole
or in part, at the option of the Company;
(11) whether the Company is obligated to redeem or purchase
any of such Securities pursuant to any sinking fund or at the
option of any Holder thereof and, if so, the period or periods
within which, the price or prices at which and the other terms
and conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation, and
any provisions for the remarketing of such Securities so redeemed
or purchased;
(12) the denominations in which any of such Securities that
are Registered Securities shall be issuable if other than
denominations of $1,000 and any integral multiple thereof, and
the denominations in which any of such Securities that are Bearer
Securities shall be issuable if other than the denomination of
$5,000;
(13) if other than the principal amount thereof, the portion
of the principal amount of any of such Securities that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the method by which such portion is to
be determined;
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(14) if other than Dollars, the Currency in which payment of
the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities shall be payable;
(15) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to
be payable, at the election of the Company or a Holder thereof or
otherwise, in a Currency other than that in which such Securities
are stated to be payable, the period or periods within which, and
the other terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange rate
between the Currency in which such Securities are denominated or
stated to be payable and the Currency in which such Securities or
any of them are to be so payable;
(16) whether the amount of payments of principal of, any
premium or interest on or any Additional Amounts with respect to
such Securities may be determined with reference to an index,
formula or other method (which index, formula or method or
methods may be based, without limitation, on one or more
Currencies, commodities, equity indices or other indices), and,
if so, the terms and conditions upon which and the manner in
which such amounts shall be determined and paid or payable;
(17) whether the principal of, any premium or interest on,
or any Additional Amounts with respect to any of such Securities
may be payable by check, wire transfer, or other method on terms
satisfactory to the Company and the Trustee;
(18) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to
any of such Securities, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants
set forth herein;
(19) whether any of such Securities of a series shall be
issuable as Original Issue Discount Securities;
(20) the applicability, if any, of Section 402 to any of
such Securities and any provisions in modification of, in
addition to or in lieu of any of the provisions of Section 402;
(21) if any of such Securities are to be issuable upon the
exercise of warrants, this shall be so established and (if
established by Board Resolution) so set forth, as well as the
time, manner and place for such Securities to be authenticated
and delivered;
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(22) if any of such Securities are to be issuable in
definitive form (whether upon original issue or upon exchange of
a temporary Security) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, then the
form and terms of such certificates, documents or conditions;
(23) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to
such Securities; and
(24) any other terms of such Securities which the Company
may establish in accordance with Section 901.
All Securities of any one series and all Coupons, if any,
appertaining to Bearer Securities of such series shall be substantially
identical except as to Currency of payments due thereunder, denomination
and the rate or rates of interest, if any, and Maturity, the date from
which interest, if any, shall accrue and except as may otherwise be
provided by the Company in or pursuant to the Board Resolution and set
forth in the Officers' Certificate or in any indenture or indentures
supplemental hereto pertaining to such series of Securities. All
Securities of any one series need not be issued at the same time and,
unless otherwise so provided by the Company, a series may, be reopened for
issuances of additional Securities of such series or to establish
additional terms of such series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of
the Officers' Certificate setting forth the terms of such series.
Section 302. CURRENCY; DENOMINATIONS.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise
provided in or pursuant to this Indenture, Registered Securities
denominated in Dollars shall be issuable in registered form without Coupons
in denominations of $1,000 and any integral multiple thereof, and the
Bearer Securities denominated in Dollars shall be issuable in denominations
of $5,000. Securities not denominated in Dollars shall be issuable in such
denominations as are established with respect to such Securities in or
pursuant to this Indenture. If Securities are issued in any currency other
than Dollars, the Company shall deliver to the Trustee an Officers'
Certificate setting forth the Dollar equivalent of such issuance.
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Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Securities shall be executed on behalf of the Company by its
Chairman of the Board, one of its Vice Chairmen, its President, its
Treasurer or one of its Vice Presidents under its corporate seal reproduced
thereon and attested by its Secretary or one of its Assistant Secretaries.
Coupons shall be executed on behalf of the Company by the Treasurer or any
Assistant Treasurer of the Company. The signature of any of these officers
on the Securities or any Coupons appertaining thereto may be manual or
facsimile.
Securities and any Coupons appertaining thereto bearing the
manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or did not hold such
offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities, together
with any Coupons appertaining thereto, executed by the Company, to the
Trustee for authentication and, provided that the Board Resolution and
Officers' Certificate or supplemental indenture or indentures with respect
to such Securities referred to in Section 301 and a Company Order for the
authentication and delivery of such Securities has been delivered to the
Trustee, the Trustee in accordance with the Company Order and subject to
the provisions hereof and of such Securities shall authenticate and deliver
such Securities. In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities and any Coupons appertaining thereto, the Trustee shall be
entitled to receive, and (subject to Sections 315(a) through 315(d) of the
Trust Indenture Act) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating to the effect:
(a) that the form or forms and terms of such
Securities and Coupons, if any, have been established in
conformity with the provisions of this Indenture;
(b) that all conditions precedent to the
authentication and delivery of such Securities and Coupons,
if any, appertaining thereto, have been complied with and
that such Securities, and Coupons, when completed by
appropriate insertion and executed and delivered by the
Company to the Trustee for authentication pursuant to this
Indenture, and authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will
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constitute legally valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms, subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other
similar laws affecting the enforcement of creditors' rights
generally, and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding
in equity or at law) and will entitle the Holders thereof to
the benefits of this Indenture; such Opinion of Counsel need
express no opinion as to the availability of equitable
remedies;
(c) that all laws and requirements in respect of the
execution and delivery by the Company of such Securities and
Coupons, if any, have been complied with; and
(d) as to such other matters as the Trustee may
reasonably request; and
(ii) an Officers' Certificate stating that, to the best
knowledge of the Persons executing such certificate, no event
which is, or after notice or lapse of time would become, an Event
of Default with respect to any of the Securities shall have
occurred and be continuing.
If all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel and an
Officers' Certificate at the time of issuance of each Security, but such
opinion and certificate, with appropriate modifications, shall be delivered
at or before the time of issuance of the first Security of such series.
After any such first delivery, any separate request by the Company that the
Trustee authenticate Securities of such series for original issue will be
deemed to be a certification by the Company that all conditions precedent
provided for in this Indenture relating to authentication and delivery of
such Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee or if the
Trustee, being advised by counsel, determines that such action may not
lawfully be taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any temporary Bearer Security in
global form shall be dated as of the date specified in or pursuant to this
Indenture.
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No Security or Coupon appertaining thereto shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Security a certificate of authentication
substantially in the form provided for in Section 202 or 610 executed by or
on behalf of the Trustee by the manual signature of one of its authorized
officers or by Authenticating Agent. Such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder. Except as permitted by
Section 306 or 307, the Trustee shall not authenticate and deliver any
Bearer Security unless all Coupons appertaining thereto then matured have
been detached and canceled.
Section 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee
shall authenticate and deliver, in the manner provided in Section 303,
temporary Securities in lieu thereof which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in
lieu of which they are issued, in registered form or, if authorized in or
pursuant to this Indenture, in bearer form with one or more Coupons or
without Coupons and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company executing
such Securities may determine, as conclusively evidenced by their execution
of such Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form, which
shall be exchanged in accordance with the provisions thereof, if temporary
Securities are issued, the Company shall cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive
Securities of the same series and containing terms and provisions that are
identical to those of any temporary Securities, such temporary Securities
shall be exchangeable for such definitive Securities upon surrender of such
temporary Securities at an Office or Agency for such Securities, without
charge to any Holder thereof. Upon surrender for cancellation of any one
or more temporary Securities (accompanied by any unmatured Coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations of the same series and
containing identical terms and provisions; PROVIDED, HOWEVER, that no
definitive Bearer Security, except as provided in or pursuant to this
Indenture, shall be delivered in exchange for a temporary Registered
Security; and PROVIDED, FURTHER, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in compliance
with the conditions set forth in or pursuant to this Indenture. Unless
otherwise provided in or pursuant to this Indenture with respect to a
temporary global Security, until so exchanged the temporary Securities of
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any series shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of such series.
Section 305. REGISTRATION, TRANSFER AND EXCHANGE.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") for such series at the Office
or Agency of the Company in the City of Grand Rapids, Michigan, or at such
other Office or Agency as may be maintained for such purpose, in which,
subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of the Registered Securities of such
series and of transfers of the Registered Securities of such series. In
the event that the Trustee shall not be the Security Registrar, it shall
have the right to examine the Security Register at all reasonable times.
The Company is hereby initially appointed as Security Registrar for each
series of Securities. In the event that the Trustee shall cease to be
Security Registrar with respect to a series of Securities, it shall have
the right to examine the Security Register for such series at all
reasonable times.
Upon surrender for registration of transfer of any Registered
Security of any series at any Office or Agency for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Registered
Securities of the same series denominated as authorized in or pursuant to
this Indenture, of a like aggregate principal amount bearing a number not
contemporaneously outstanding and containing identical terms and
provisions.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series
containing identical terms and provisions, in any authorized denominations,
and of a like aggregate principal amount, upon surrender of the Securities
to be exchanged at any Office or Agency for such series. Whenever any
Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, or shall cause the
Authenticating Agent to authenticate and deliver, the Registered Securities
which the Holder making the exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of
such series may be exchanged for Registered Securities of such series
containing identical terms, denominated as authorized in or pursuant to
this Indenture and in the same aggregate principal amount, upon surrender
of the Bearer Securities to be exchanged at any Office or Agency for such
series, with all unmatured Coupons and all matured Coupons in default
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thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured Coupon or Coupons or matured Coupon or Coupons
in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee
in an amount equal to the face amount of such missing Coupon or Coupons, or
the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security shall surrender
to any Paying Agent any such missing Coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; PROVIDED, HOWEVER, that, except as otherwise
provided in Section 1002, interest represented by Coupons shall be payable
only upon presentation and surrender of those Coupons at an Office or
Agency for such series located outside the United States. Notwithstanding
the foregoing, in case a Bearer Security of any series is surrendered at
any such Office or Agency for such series in exchange for a Registered
Security of such series and like tenor after the close of business at such
Office or Agency on (i) any Regular Record Date and before the opening of
business at such Office or Agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such
Office or Agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the Coupon relating to
such Interest Payment Date or proposed date of payment, as the case may be
(or, if such Coupon is so surrendered with such Bearer Security, such
Coupon shall be returned to the Person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be, shall
not be payable on such Interest Payment Date or proposed date for payment,
as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but shall be payable only to the Holder
of such Coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are surrendered for exchange as
contemplated by the immediately preceding two paragraphs, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a successor depository
is not appointed by the Company within 60 days of the date the Company is
so informed in writing, (ii) the Company executes and delivers to the
Trustee a Company Order to the effect that such global Security shall be so
exchangeable, or (iii) an Event of Default has occurred and is continuing
with respect to the Securities. If the beneficial owners of interests in a
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global Security are entitled to exchange such interests for definitive
Securities, then without unnecessary delay but in any event not later than
the earliest date on which such interests may be so exchanged, the Company
shall deliver to the Trustee definitive Securities in such form and
denominations as are required by or pursuant to this Indenture, and of the
same series, containing identical terms and in aggregate principal amount
equal to the principal amount of, such global Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such global Security shall be surrendered from time to time by
the U.S. Depository or such other Depository as shall be specified in the
Company Order with respect thereto, and in accordance with instructions
given to the Trustee and the U.S. Depository or such other Depository, as
the case may be (which instructions shall be in writing but need not be
contained in or accompanied by an Officers' Certificate or be accompanied
by an Opinion of Counsel), as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or in part, for definitive Securities as described
above without charge. The Trustee shall authenticate and make available
for delivery, in exchange for each portion of such surrendered global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such global Security to be exchanged, which (unless such Securities are not
issuable both as Bearer Securities and as Registered Securities, in which
case the definitive Securities exchanged for the global Security shall be
issuable only in the form in which the Securities are issuable, as provided
in or pursuant to this Indenture) shall be in the form of Bearer Securities
or Registered Securities, or any combination thereof, as shall be specified
by the beneficial owner thereof; PROVIDED, HOWEVER, that no such exchanges
may occur during a period beginning at the opening of business 15 days
before any selection of Securities of the same series and containing
identical terms to be redeemed and ending on the relevant Redemption Date;
AND PROVIDED, FURTHER, that (unless otherwise provided in or pursuant to
this Indenture) no Bearer Security delivered in exchange for a portion of a
global Security shall be mailed or otherwise delivered to any location in
the United States. Promptly following any such exchange in part, such
global Security shall be returned by the Trustee to such Depository or the
U.S. Depository, as the case may be, or such other Depository or U.S.
Depository referred to above in accordance with the instructions of the
Company referred to above. If a Registered Security is issued in exchange
for any portion of a global Security after the close of business at the
Office or Agency for such Security where such exchange occurs on or after
(i) any Regular Record Date for such Security and before the opening of
business at such Office or Agency on the next Interest Payment Date, or
(ii) any Special Record Date for such Security and before the opening of
business at such Office or Agency on the related proposed date for payment
of interest or Defaulted Interest, as the case may be, interest shall not
be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Registered Security, but shall be
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payable on such Interest Payment Date or proposed date for payment, as the
case may be, only to the Person to whom interest in respect of such portion
of such global Security shall be payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company
evidencing the same debt and entitling the Holders thereof to the same
benefits under this Indenture as the Securities surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so
required by the Company or the Security Registrar for such Security) be
duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar for such
Security duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer
or exchange, or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 905
or 1107 not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture,
the Company shall not be required (i) to issue, register the transfer of or
exchange any Securities during a period beginning at the opening of
business 15 days before the date notice is given of the redemption of
Securities of the same series under Section 1103 and ending at the close of
business on the day of such selection, or (ii) to register the transfer of
or exchange any Registered Security so selected for redemption in whole or
in part, except in the case of any Security to be redeemed in part, the
portion thereof not to be redeemed, or (iii) to exchange any Bearer
Security so selected for redemption except, to the extent provided with
respect to such Bearer Security, that such Bearer Security may be exchanged
for a Registered Security of like tenor and the same series, provided that
such Registered Security shall be immediately surrendered for redemption
with written instruction for payment consistent with the provisions of this
Indenture, or (iv) to issue, register the transfer of or exchange any
Security which, in accordance with its terms, has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
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Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions
of this Section 306, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same
series containing identical terms and of like principal amount and bearing
a number not contemporaneously outstanding, with Coupons appertaining
thereto corresponding to the Coupons, if any, appertaining to the
surrendered Security.
If there be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or Coupon, and (ii) such security or indemnity as may be required
by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Security or Coupon has been acquired by a bona fide purchaser, the Company
shall execute and, upon the Company's request, the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Security or in exchange for the Security to which
a destroyed, lost or stolen Coupon appertains with all appurtenant Coupons
not destroyed, lost or stolen, a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons,
if any, appertaining to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in
case any mutilated, destroyed, lost or stolen Security or Coupon has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security or Coupon; PROVIDED,
HOWEVER, that payment of principal of, any premium or interest on or any
Additional Amounts with respect to any Bearer Securities shall, except as
otherwise provided in Section 1002, be payable only at an Office or Agency
for such securities located outside the United States and, unless otherwise
provided in or pursuant to this Indenture, any interest on Bearer
Securities and any Additional Amounts with respect to such interest shall
be payable only upon presentation and surrender of the Coupons appertaining
thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security,
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or in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Company, whether
or not the destroyed, lost or stolen Security and Coupons appertaining
thereto or the destroyed, lost or stolen Coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of
such series and any Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented
pursuant to this Indenture with respect to particular Securities or
generally, shall be exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or Coupons.
Section 307. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL
AMOUNTS; RIGHTS TO INTEREST AND CERTAIN ADDITIONAL
AMOUNTS PRESERVED.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered
Security which shall be payable, and are punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name
such Security (or one or more Predecessor Securities) is registered as of
the close of business on the Regular Record Date for such interest. Unless
otherwise provided in or pursuant to this Indenture, in case a Bearer
Security is surrendered in exchange for a Registered Security after the
close of business at an Office or Agency for such Security on any Regular
Record Date therefor and before the opening of business at such Office or
Agency on the next succeeding Interest Payment Date therefor, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date and interest shall not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange for such
Bearer Security, but shall be payable only to the Holder of such Coupon
when due in accordance with the provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered
Security which shall be payable, but shall not be punctually paid or duly
provided for, on any Interest Payment Date for such Registered Security
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder thereof on the relevant Regular Record Date by virtue of having
been such Holder; and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Person in whose name such Registered Security (or
a Predecessor Security thereof) shall be registered at the close
of business on a Special Record Date for the payment of such
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Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on such Registered
Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of
Money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such Money when so deposited to be
held in trust for the benefit of the Person entitled to such
Defaulted Interest as in this Clause provided. Thereupon, the
Company shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Company shall promptly
notify the Trustee in writing of such Special Record Date and the
Trustee, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date to be mailed, first-class postage
prepaid, to the Holder of such Registered Security (or a
Predecessor Security thereof) at his address as it appears in the
Security Register not less than 10 days prior to such Special
Record Date. The Trustee may, in its discretion, in the name and
at the expense of the Company cause a similar notice to be
published at least once in an Authorized Newspaper of general
circulation in , but such
publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Person in whose name such
Registered Security (or a Predecessor Security thereof) shall be
registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following Clause
(2). In case a Bearer Security is surrendered at the Office or
Agency for such Security in exchange for a Registered Security
after the close of business at such Office or Agency on any
Special Record Date and before the opening of business at such
Office or Agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered
without the Coupon relating to such proposed date of payment and
Defaulted Interest shall not be payable on such proposed date of
payment in respect of the Registered Security issued in exchange
for such Bearer Security, but shall be payable only to the Holder
of such Coupon when due in accordance with the provisions of this
Indenture.
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(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Security may be listed,
and upon such notice as may be required by such exchange, if,
after written notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such payment shall be
deemed practicable by the Trustee.
At the option of the Company, interest on Registered Securities
that bear interest may be paid by mailing a check to the address of the
person entitled thereto as such address shall appear in the Security
Register.
Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this Indenture upon registration of,
transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
Section 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Registered
Security is registered in the Security Register as the owner of such
Registered Security for the purpose of receiving payment of principal of,
any premium and (subject to Sections 305 and 307) interest on and any
Additional Amounts with respect to such Registered Security and for all
other purposes whatsoever, whether or not any payment with respect to such
Registered Security shall be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to
the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security or the bearer of any
Coupon as the absolute owner of such Security or Coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not any payment with respect to such Security or
Coupon shall be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held
on its behalf by a Depository shall have any rights under this Indenture
with respect to such Global Security, and such Depository may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
owner of such Global Security for all purposes whatsoever. None of the
Company, the Trustee, any Paying Agent or the Security Registrar will have
any responsibility or liability for any aspect of the records relating to
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or payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Section 309. CANCELLATION.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such
purpose, shall be canceled promptly by the Trustee. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired
in any manner whatsoever, and all Securities so delivered shall be canceled
promptly by the Trustee. No Securities shall be authenticated in lieu of
or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by or pursuant to this Indenture. All
canceled Securities and Coupons held by the Trustee shall be destroyed by
the Trustee and the Trustee shall deliver to the Company a certificate of
destruction.
Section 310. COMPUTATION OF INTEREST.
Except as otherwise provided in or pursuant to this Indenture,
interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. SATISFACTION AND DISCHARGE.
Upon the direction of the Company by a Company Order, this
Indenture shall cease to be of further effect with respect to any series of
Securities specified in such Company Order (except as to any surviving
rights of registration of transfer or exchange of Securities of such series
herein expressly provided for and any right to receive Additional Amounts
as provided in Section 1004) and any Coupons appertaining thereto, and the
Trustee, on receipt of a Company Order, at the expense of the Company,
shall execute a written instrument, satisfactory in form and substance to
the Company and the Trustee, acknowledging satisfaction and discharge of
this Indenture as to such series, when
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(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all Coupons appertaining
thereto (other than (i) Coupons appertaining to Bearer
Securities of such series surrendered in exchange for
Registered Securities of such series and maturing after such
exchange whose surrender is not required or has been waived
as provided in Section 305, (ii) Securities and Coupons of
such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306,
(iii) Coupons appertaining to Securities of such series
called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided
in Section 1106, and (iv) Securities and Coupons of such
series for whose payment Money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within 1
year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose, Money in an amount
sufficient to pay and discharge the entire indebtedness on
such Securities and any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation,
including the principal of, any premium and interest on, and
any Additional Amounts with respect to such Securities and
any Coupons appertaining thereto, to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Maturity thereof, as the case may be;
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(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company with respect to the
Outstanding Securities of such series and any Coupons
appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series
have been complied with.
In the event there are Securities of two or more series
hereunder, the Trustee shall he required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if
requested in writing to do so with respect to Securities of such series as
to which it is Trustee and if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to any series of Securities, the obligations of the Company to
the Trustee under Section 605 and, if Money shall have been deposited with
the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
Section 402. SATISFACTION, DISCHARGE AND DEFEASANCE.
If provision is made in or pursuant to this Indenture for
defeasance of Securities of any series and any Coupons appertaining thereto
pursuant to this Section 402, the Company shall be deemed to have paid and
discharged the entire indebtedness on all the Outstanding Securities of
such series and the Trustee, at the expense of the Company, shall execute a
written instrument, in form and substance satisfactory to the Company and
the Trustee, acknowledging satisfaction and discharge of such indebtedness,
when
(1) either
(A) with respect to all Outstanding Securities of such
series and any Coupons appertaining thereto,
(i) the Company has irrevocably deposited or
caused to be deposited with the Trustee, as trust funds
in trust for such purpose, an amount sufficient to pay
and discharge the entire indebtedness on such
Securities and any Coupons appertaining thereto for the
principal of, any premium and interest on, and any
Additional Amounts with respect to such Securities and
any Coupons appertaining thereto to the Maturity
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thereof as contemplated by the penultimate paragraph of
this Section 402; or
(ii) the Company has deposited or caused to be
deposited with the Trustee, as obligations in trust for
such purpose, such amount of Government Obligations
applicable to such Securities or any Coupons
appertaining thereto (determined on the basis of the
Currency in which such Securities or any Coupons
appertaining thereto are specified as payable at the
Maturity thereof) as shall, together with the income to
accrue thereon without consideration of any
reinvestment thereof, be sufficient to pay and
discharge the entire indebtedness on all such
Securities and any Coupons appertaining thereto for the
principal and any premium, interest or Additional
Amounts with respect to such Securities and any Coupons
appertaining thereto to the Maturity thereof, as
contemplated by the penultimate paragraph of this
Section 402; or
(B) the Company has properly fulfilled such other
means of satisfaction and discharge as is provided in or
pursuant to this Indenture for the Securities of such
series; and
(2) the Company has paid or caused to be paid all other
sums payable hereunder with respect to the Outstanding Securities
of such series and any Coupons appertaining thereto;
(3) the Company has delivered to the Trustee a certificate
signed by Independent Public Accountants certifying as to the
sufficiency of the amounts deposited pursuant to subsections
(A)(i) or (ii) of this Section for payment of the principal of,
any premium and interest on and any Additional Amounts with
respect to such Securities and any Coupons appertaining thereto
on the dates such payments are due, an Officers' Certificate and
an Opinion of Counsel, each such Certificate and Opinion stating
that no Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to
such Securities shall have occurred and all conditions precedent
herein provided for relating to the satisfaction and discharge of
the entire indebtedness on all Outstanding Securities of any such
series and any Coupons appertaining thereto shall have been
complied with; and
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(4) the Company has delivered to the Trustee
(A) an opinion of independent counsel that the Holders
of the Securities of such series and any Coupons
appertaining thereto shall have no United States federal
income tax consequences as a result of such deposit and
termination; and
(B) if the Securities of such series are then listed
on the New York Stock Exchange, an opinion of independent
counsel that the Securities of such series shall not be
delisted as a result of the exercise of this option.
Any deposits with the Trustee referred to in subsection (1)(A) of
this Section shall be irrevocable and shall be made under the terms of an
escrow trust agreement in form and substance satisfactory to the Trustee.
If any Outstanding Securities of such series are to be redeemed prior to
their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory sinking fund requirement or
otherwise, the Company shall make such arrangements as are satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section
402 with respect to all the Outstanding Securities of any series and any
Coupons appertaining thereto, the terms and conditions of such series
(including the terms and conditions with respect thereto set forth in this
Indenture, other than the provisions of Sections 305, 306 and 1002 and
other than the right of Holders of Securities of such series and any
Coupons appertaining thereto to receive, from the trust fund described in
this Section, payment of the principal of, any premium or the interest on,
or any Additional Amounts with respect to such Securities and any Coupons
appertaining thereto when such payments shall be due) and the rights,
powers, duties and immunities of the Trustee hereunder shall no longer be
binding upon, or applicable to, the Company; PROVIDED that the Company
shall not be discharged from any payment obligations in respect of
Securities of such series or any Coupons appertaining thereto which are
deemed not to be Outstanding under clause (iii) of the definition of
Outstanding if such obligations continue to be valid obligations of the
Company under applicable law.
Section 403. APPLICATION OF TRUST MONEY.
Subject to the provisions of the penultimate paragraph of Section
1003, all Money and Government Obligations deposited with the Trustee
pursuant to Section 401 or 402 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the Coupons and this
Indenture, to the payment, either directly or through any Paying Agent
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(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium,
interest and Additional Amounts for whose payment such Money has or
Government Obligations have been deposited with the Trustee; but such Money
and Government Obligations need not be segregated from other funds except
to the extent required by law.
ARTICLE FIVE
REMEDIES
Section 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest on or any
Additional Amounts payable in respect of any Security of such
series when such interest becomes or such Additional Amounts
become due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of and any
premium on any Security of such series when it becomes due and
payable at its Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture or the Securities
(other than a covenant or warranty a default in the performance
or the breach of which is elsewhere in this Section specifically
dealt with or which has been expressly included in this Indenture
solely for the benefit of a series of Securities other than such
series), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25 percent in principal amount
of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
or
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(5) if any event of default as defined in any mortgage,
indenture or instrument under which there may be issued, or by
which there may be secured or evidenced, any indebtedness of the
Company or any Principal Constituent Bank for Money borrowed,
whether such indebtedness now exists or shall hereafter be
created, shall happen and shall result in such indebtedness in
principal amount in excess of $125,000,000 becoming or being
declared due and payable prior to the date on which it would
otherwise become due and payable, and such acceleration shall not
be rescinded or annulled, or such indebtedness shall not have
been discharged, within a period of 30 days after there shall
have been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders
of at least 25 percent in principal amount of the Outstanding
Securities of such series, a written notice specifying such event
of default and requiring the Company to cause such acceleration
to be rescinded or annulled or to cause such indebtedness to be
discharged and stating that such notice is a "Notice of Default"
hereunder; or
(6) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the
Company or any Principal Constituent Bank in an involuntary
proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law and such decree or order
shall remain unstayed and in effect for a period of 60
consecutive days; or
(b) a decree or order adjudging the Company or any
Principal Constituent Bank to be insolvent, or approving a
petition seeking reorganization, arrangement, adjustment or
composition of the Company or any Principal Constituent Bank
and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(c) a final and non-appealable order appointing a
custodian, receiver, liquidator, assignee, trustee or other
similar official of the Company or any Principal Constituent
Bank or of any substantial part of the property of the
Company or any Principal Constituent Bank, as the case may
be, or ordering the winding up or liquidation of the affairs
of the Company or any Principal Constituent Bank; or
(7) the commencement by the Company or any Principal
Constituent Bank of a voluntary proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or of
a voluntary proceeding seeking to be adjudicated insolvent or the
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consent by the Company or any Principal Constituent Bank to the
entry of a decree or order for relief in an involuntary
proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
insolvency proceedings against it, or the filing by the Company
or any Principal Constituent Bank of a petition or answer or
consent seeking reorganization or relief under any applicable
law, or the consent by the Company or any Principal Constituent
Bank to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee or similar official of the Company or any Principal
Constituent Bank or any substantial part of the property of the
Company or any Principal Constituent Bank or the making by the
Company or any Principal Constituent Bank of an assignment for
the benefit of creditors, or the taking of corporate action by
the Company or any Principal Constituent Bank in furtherance of
any such action.
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series
at the time Outstanding occurs and is continuing, then the Trustee or the
Holders of not less than 25 percent in principal amount of the Outstanding
Securities of such series may declare the principal of all the Securities
of such series, or such lesser amount as may be provided for in the
Securities of such series, to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by the Holders), and
upon any such declaration such principal or such lesser amount shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree
for payment of the Money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series,
by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum of Money sufficient to pay
(A) all overdue installments of any interest on and
Additional Amounts with respect to all Securities of such
series and any Coupon appertaining thereto,
(B) the principal of and any premium on any Securities
of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
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or rates borne by or provided for in such Securities and any
Additional Amounts with respect thereto,
(C) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue
installments of any interest and Additional Amounts at the
rate or rates borne by or provided for in such Securities,
and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of
such series, other than the non-payment of the principal of, any
premium and interest on and any Additional Amounts with respect
to Securities of such series which shall have become due solely
by such declaration of acceleration, shall have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on or any Additional Amounts with respect to any
Security or any Coupon appertaining thereto when such interest or
Additional Amounts shall have become due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of or
any premium on any Security at its Maturity,
the Company shall, upon written demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of such Securities and any Coupons
appertaining thereto, the whole amount of Money then due and payable with
respect to such Securities and any Coupons appertaining thereto, with
interest upon the overdue principal, any premium and, to the extent that
payment of such interest shall be legally enforceable, upon any overdue
installments of interest and Additional Amounts at the rate or rates borne
by or provided for in such Securities, and, in addition thereto, such
further amount of Money as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
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If the Company fails to pay the Money it is required to pay the
Trustee pursuant to the preceding paragraph forthwith upon the demand of
the Trustee, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the Money
so due and unpaid, and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company or any other obligor
upon such Securities and any Coupons appertaining thereto and collect the
Moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or any other obligor upon such Securities
and any Coupons appertaining thereto, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities
of such series and any Coupons appertaining thereto by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or such Securities or in aid of the
exercise of any power granted herein or therein, or to enforce any other
proper remedy.
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of any
overdue principal, premium, interest or Additional Amounts) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such
series, of the principal and any premium, interest and Additional
Amounts owing and unpaid in respect of such Securities and any
Coupons appertaining thereto and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders of such
Securities or any Coupons allowed in such judicial proceeding,
and
(ii) to collect and receive any Moneys or other property
payable or deliverable on any such claims and to distribute the
same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder of Securities or any Coupons to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders of Securities or any Coupons, to pay
to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
and any other amounts due the Trustee under Section 605.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of a
Security or any Coupon any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or Coupons or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Holder of a Security or any Coupon in any such proceeding.
Section 505. TRUSTEE MAY ENFORCE
CLAIMS WITHOUT POSSESSION
OF SECURITIES OR COUPONS.
All rights of action and claims under this Indenture or any of
the Securities or Coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or Coupons or the
production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery or judgment, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, shall be for the ratable
benefit of each and every Holder of a Security or Coupon in respect of
which such judgment has been recovered.
Section 506. APPLICATION OF MONEY COLLECTED.
Any Money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such Money on account of
principal, or any premium, interest or Additional Amounts, upon
presentation of the Securities or Coupons, or both, as the case may be, and
the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and
any predecessor Trustee under Section 605;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities and any Coupons for principal and any
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premium, interest and Additional Amounts in respect of which or
for the benefit of which such Money has been collected, ratably,
without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and Coupons
for principal and any premium, interest and Additional Amounts,
respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
Section 507. LIMITATIONS ON SUITS.
No Holder of any Security of any series or any Coupons
appertaining thereto shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of such series;
(2) the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of such series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture or any Security to affect, disturb or prejudice
the rights of any other such Holders or Holders of Securities of any other
series, or to obtain or to seek to obtain priority or preference over any
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other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL AND ANY PREMIUM, INTEREST AND ADDITIONAL
AMOUNTS.
Notwithstanding any other provision in this Indenture, the Holder
of any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and
(subject to Sections 305 and 307) interest on, and any Additional Amounts
with respect to such Security or payment of such Coupon, as the case may
be, on the respective Stated Maturity or Stated Maturities therefor
specified in such Security or Coupon (or, in the case of redemption, on the
Redemption Date or, in the case of repayment at the option of such Holder
if provided in or pursuant to this Indenture, on the date such repayment is
due) and to institute suit for the enforcement of any such payment, and
such right shall not be impaired without the consent of such Holder.
Section 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or a Coupon has
instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case the Company, the Trustee and each such Holder
shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and each such Holder
shall continue as though no such proceeding had been instituted.
Section 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons in
the last paragraph of Section 306, no right or remedy herein conferred upon
or reserved to the Trustee or to each and every Holder of a Security or a
Coupon is intended to be exclusive of any other right or remedy, and every
right and remedy, to the extent permitted by law, shall be cumulative and
in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
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Section 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security or Coupon to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to any Holder of a
Security or a Coupon may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by such Holder, as the case may
be.
Section 512. CONTROL BY HOLDERS OF SECURITIES.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series and any Coupons appertaining
thereto, PROVIDED that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture or with the Securities of any
series,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction,
(3) such direction is not unduly prejudicial to the rights
of the other Holders of Securities of such series not joining in
such action, and
(4) such direction shall not, in the reasonable opinion of
the Trustee, expose the Trustee to personal liability.
Section 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series on behalf of the Holders of all
the Securities of such series and any Coupons appertaining thereto may
waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of, any premium or
interest on, or any Additional Amounts with respect to any
Security of such series or any Coupons appertaining thereto, or
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(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent
thereon.
Section 514. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants that (to the extent that it may lawfully do
so) it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company
expressly waives (to the extent that it may lawfully do so) all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
Section 515. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Security or Coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorney fees, against any party
litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; PROVIDED, HOWEVER, that
the provisions of this Section shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10 percent in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on or any Additional Amounts in respect of any Security
on or after the Stated Maturity or Stated Maturities expressed in such
Security or in the Coupons, if any, for such interest (or, in the case of
redemption, on or after the Redemption Date or, in the case of repayment,
on or after the Repayment Date).
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ARTICLE SIX
THE TRUSTEE
Section 601. CERTAIN RIGHTS OF TRUSTEE.
Subject to Sections 315(a) through 315(d) of the Trust Indenture
Act:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon, other
evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed or presented
by the proper party or parties, and the Trustee need not
investigate any fact or matter stated in the document;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or a
Company Order (in each case, other than delivery of any Security,
together with any Coupons appertaining thereto, to the Trustee
for authentication and delivery pursuant to Section 303 which
shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence shall be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by or pursuant to this
Indenture at the request or direction of any of the Holders of
Securities of any series or any Coupons appertaining thereto
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against
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the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
coupon, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to
examine, during business hours and upon reasonable notice, the
books, records and premises of the Company, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any willful misconduct or negligence on the part
of any agent or attorney appointed with due care by it hereunder.
Section 602. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken
as the statements of the Company and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or the Coupons, except that the Trustee
represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility
and Qualification on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the
Trustee nor any Authenticating Agent shall be (i) accountable for the use
or application by the Company of the Securities or the proceeds thereof,
(ii) accountable for any Money paid to the Company, or upon the Company's
direction, if made under and in accordance with the provisions of this
Indenture, and (iii) responsible for the use or application of any Money
received by any Paying Agent who is not the Trustee.
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Section 603. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other Person that may be an agent of the Company,
in its individual or any other capacity, may become the owner or pledgee of
Securities or Coupons and, subject to Sections 310(b) and 311 of the Trust
Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other Person.
Section 604. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law and shall
be held uninvested. The Trustee shall be under no liability for interest
on any Money received by it hereunder except as otherwise agreed in writing
with the Company.
Section 605. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder
(which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to the
Trustee's willful misconduct, negligence or bad faith; and
(3) to indemnify the Trustee and each of its officers,
directors, attorneys-in-fact and agents for, and to hold each
such Person harmless against, any loss, claim, liability or
expense incurred without willful misconduct, negligence or bad
faith on such Person's part, arising out of or in connection with
the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending
themselves against any claim or liability, and of complying with
any process served on any of them, in connection with the
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exercise or performance of any of their powers or duties
hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities
of any series upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the payment of principal of, and
premium or interest on or any Additional Amounts with respect to Securities
or any Coupons appertaining thereto. Such obligations and lien shall
survive the satisfaction and discharge of this Indenture and any rejection
of this Indenture by any bankruptcy court.
If the Trustee incurs expenses or render services after the
occurrence of an Event of Default, the parties and each Holder, by each
such Holder's acceptance of any Security or Coupon, hereby agrees that the
expenses and the compensation for services are intended to constitute
expenses of administration to the extent enforceable under any applicable
bankruptcy law.
Section 606. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY;
CONFLICTING INTEREST.
There shall at all times be a Trustee hereunder that is a
Corporation permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act and that has a combined
capital and surplus (computed in accordance with Section 310(a)(2) of the
Trust Indenture Act) of at least $50,000,000. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article. If the Trustee has or shall acquire
any conflicting interest, as defined in Section 310(b) of the Trust
Indenture Act, with respect to the Securities of any series, the Trustee
shall take such action as is required pursuant to said Section 310(b).
Section 607. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee pursuant to Section 608.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor
Trustee required by Section 608 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
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resignation, the resigning Trustee may, at the expense of the
Company, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the
Trust Indenture Act with respect to Securities of any series
after written request therefor by the Company or any Holder
of a Security of such series who has been a bona fide Holder
of a Security of such series for at least 6 months, unless
the Trustee's duty to resign is stayed as provided in this
Section, or
(2) the Trustee shall cease to be eligible under
Section 606 and shall fail to resign after written request
therefor by the Company or any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board
Resolution, may remove the Trustee with respect to all Securities or the
Securities of such series, or (ii) subject to Section 315(e) of the Trust
Indenture Act, any Holder of a Security who has been a bona fide Holder of
a Security of such series for at least 6 months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities
of such series and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or
more series, the Company, by or pursuant to a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being
understood that any such successor Trustee may he appointed with
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respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall comply with
the applicable requirements of Section 608. If, within 1 year
after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 608, become the
successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the
Company or the Holders of Securities and accepted appointment in
the manner required by Section 608, any Holder of a Security who
has been a bona fide Holder of a Security of such series for at
least 6 months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities
of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect
to the Securities of any series by mailing written notice of such
event by first-class mail, postage prepaid, to the Holders of
Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of
such series are issued as Bearer Securities, by publishing notice
of such event once in an Authorized Newspaper in each Place of
Payment located outside the United States. Each notice shall
include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
Office.
Section 608. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Upon the appointment hereunder of any successor Trustee
with respect to all Securities, such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company
and the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall
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become vested with all the rights, powers, trusts and duties
hereunder of the retiring Trustee; but, on the written request of
the Company or such successor Trustee, such retiring Trustee,
upon payment of its charges, shall execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and, subject to Section
1003, shall duly assign, transfer and deliver to such successor
Trustee all property and Money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided
for in Section 605.
(b) Upon the appointment hereunder of any successor Trustee
with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and such successor
Trustee shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest
in, such successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates; (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee; and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees co-
trustees of the same trust, that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any notice
given to, or received by, or any act or failure to act on the
part of any other Trustee hereunder, and, upon the execution and
delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the
extent provided therein, such retiring Trustee shall have no
further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the
Trustee under this Indenture with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates other than as hereinafter expressly set forth,
and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
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trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or
such successor Trustee, such retiring Trustee, upon payment of
its charges with respect to the Securities of that or those
series to which the appointment of such successor relates and
subject to Section 1003, shall duly assign, transfer and deliver
to such successor Trustee, to the extent contemplated by such
supplemental indenture, the property and Money held by such
retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any Person appointed hereunder as a
successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as
the case may be.
(d) No Person shall accept its appointment hereunder as a
successor Trustee unless at the time of such acceptance such
successor Person shall be qualified and eligible under this
Article.
Section 609. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any Corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any Corporation succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such Corporation shall otherwise be qualified and
eligible under this Article Six, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated but not delivered by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 610. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint one or more Authenticating Agents
acceptable to the Company with respect to one or more series of Securities
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which shall be authorized to act on behalf of the Trustee to authenticate
Securities of that or those series issued upon original issue, exchange,
registration of transfer, partial redemption or pursuant to Section 306,
and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by
an Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and,
except as provided in or pursuant to this Indenture, shall at all times be
a corporation that would he permitted by the Trust Indenture Act to act as
trustee under an indenture qualified under the Trust Indenture Act, is
authorized under applicable law and by its charter to act as an
Authenticating Agent and has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any Corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any Corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, provided
such Corporation shall be otherwise eligible under this Section, without
the execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving 30 days
written notice thereof to the Trustee and the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall (i) mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Registered Securities, if any, of the
series with respect to which such Authenticating Agent shall serve, as
their names and addresses appear in the Security Register; and (ii) if
Securities of the series are issued as Bearer Securities, publish notice of
such appointment at least once in an Authorized Newspaper in the place
where such successor Authenticating Agent has its principal office if such
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office is located outside the United States. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested
with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to
time reasonable compensation for its services under this Section. If the
Trustee makes such payments, it shall be entitled to be reimbursed for such
payments, subject to the provisions of Section 605.
The provisions of Sections 308, 602 and 603 shall be applicable
to each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or
more series of Securities pursuant to this Section, the Securities of such
series may have endorsed thereon, in addition to or in lieu of the
Trustee's certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
Dated: _______________________________
as Trustee
By
As Authenticating Agent
By
Authorized Signatory
If all of the Securities of any series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested in
writing (which writing need not be accompanied by or contained in an
Officers' Certificate by the Company), shall appoint in accordance with
this Section an Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
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Section 611. NOTICE OF DEFAULT.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture
Act, notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; PROVIDED, HOWEVER, that, except in
the case of a default in the payment of the principal of (or premium, if
any) or interest on, or any Additional Amounts with respect to, any
Security of such series or in the payment of any sinking fund installment
with respect to Securities of such series, the Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of
such notice is in the interests of the Holders of Securities and Coupons of
such series; and PROVIDED, FURTHER, that in the case of default of the
character specified in Section 501(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 60 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall
furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than 15 days after each
Regular Record Date for each series of Securities, or upon such
other dates as are set forth in or pursuant to the Board
Resolution or indenture supplemental hereto authorizing such
series, a list, in each case in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as
of the applicable date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished,
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PROVIDED, HOWEVER, that so long as the Trustee is the Security Registrar no
such list shall be required to be furnished.
Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS.
The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company,
the Trustee, nor any agent of either of them shall be held accountable by
reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with Section 312 of
the Trust Indenture Act, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
312(b) of the Trust Indenture Act.
Section 703. REPORTS BY TRUSTEE.
(a) Within 60 days after ___________ of each year
commencing with the first ___________ following the first
issuance of Securities pursuant to Section 301, if required by
Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit, pursuant to Section 313(c) of the Trust Indenture Act,
a brief report dated as of such __________ with respect to any of
the events specified in said Section 313(a) which may have
occurred since the later of the immediately preceding ___________
and the date of this Indenture, but if no such event has occurred
within such period, no report need be transmitted.
(b) The Trustee shall transmit the reports required by
Section 313(a) of the Trust Indenture Act at the times specified
therein.
(c) Reports pursuant to this Section shall be transmitted
in the manner and to the Persons required by Sections 313(c) and
313(d) of the Trust Indenture Act.
Section 704. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
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(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and
the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Company, as the case may be,
with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(3) transmit within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to time
by the Commission; and
(4) transmit to the Trustee, not less than annually, a
brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under the Indenture as determined
without regard to any period of grace or requirement of notice
provided under the Indenture.
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ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Company with or into any
other Person or Persons (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any conveyance,
transfer or lease of the property of the Company as an entirety or
substantially as an entirety, to any other Person or Persons (whether or
not affiliated with the Company); PROVIDED, HOWEVER, that:
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, the entity
formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as
an entirety shall be a Corporation organized and existing under
the laws of the United States of America, any state thereof or
the District of Columbia and shall expressly assume, by an
indenture (or indentures, if at such time there is more than one
Trustee) supplemental hereto, executed by the successor Person
and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of, any
premium and interest on and any Additional Amounts with respect
to all the Securities and the performance of every other covenant
of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no
event which, after notice or lapse of time, would become an Event
of Default, shall have occurred and be continuing; and
(3) either the Company or the successor Person shall have
delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture
comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied
with.
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Section 802. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY.
Upon any consolidation or merger or any conveyance, transfer or
lease of the properties and assets of the Company substantially as an
entirety to any Person in accordance with Section 801, the successor Person
formed by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had
been named as the Company herein; and thereafter, except in the case of a
lease to another Person, the predecessor Person shall be released from all
obligations and covenants under this Indenture, the Securities and the
Coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or Coupons, the
Company (when authorized by or pursuant to a Board Resolution) and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (as shall be
specified in such supplemental indenture or indentures) or to
surrender any right or power herein conferred upon the Company;
or
(3) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the
payment of principal of, any premium or interest on or any
Additional Amounts with respect to Securities, to permit
Registered Securities to be exchanged for Bearer Securities, to
permit Bearer Securities to be exchanged for Bearer Securities of
other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form, provided any such
action shall not adversely affect the interests of the Holders of
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Securities of any series or any Coupons appertaining thereto in
any material respect; or
(4) to establish the form or terms of Securities of any
series and any Coupons appertaining thereto as permitted by
Sections 201 and 301; or
(5) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
608; or
(6) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture
which shall not adversely affect the interests of the Holders of
Securities of any series or any Coupons appertaining thereto in
any material respect; or
(7) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as
herein set forth; or
(8) to add any additional Events of Default with respect to
all or any series of Securities (as shall be specified in such
supplemental indenture); or
(9) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Article Four, PROVIDED that any such action shall not adversely
affect the interests of any Holder of a Security of such series
and any Coupons appertaining thereto or any other Security or
Coupon in any material respect; or
(10) to secure the Securities pursuant to Section 1005, 1006
or otherwise; or
(11) to amend or supplement any provision contained herein
or in any supplemental indenture, PROVIDED that no such amendment
or supplement shall materially adversely affect the interests of
the Holders of any Securities then Outstanding.
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Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company (when authorized by or
pursuant to a Board Resolution), and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; PROVIDED
HOWEVER, that no such supplemental indenture, without the consent of the
Holder of each Outstanding Security affected thereby, shall:
(1) change the Stated Maturity of the principal of, or any
premium or installment of interest on or any Additional Amounts
with respect to, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any Additional Amounts
with respect thereto, or any premium payable upon the redemption
thereof or otherwise, or change the obligation of the Company to
pay Additional Amounts pursuant to Section 1004 (except as
contemplated by Section 501(l) and permitted by Section 901(l)),
or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the amount thereof provable in bankruptcy pursuant
to Section 504, or adversely affect the right of repayment at the
option of any Holder as contemplated by Article Thirteen, or
change the Place of Payment, Currency in which the principal of,
any premium or interest on, or any Additional Amounts with
respect to any Security is payable, or impair the right to
institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date or, in the case of repayment at
the option of the Holder, on or after the date for repayment); or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum
or voting; or
(3) modify any of the provisions of this Section, or
Section 513 or Section 1009, except to increase any such
percentage or to provide that certain other provisions of this
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Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which shall have been included
expressly and solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
As a condition to executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trust created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 315 of the Trust
Indenture Act) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of a Security theretofore or thereafter
authenticated and delivered hereunder and of any Coupon appertaining
thereto shall be bound thereby.
Section 905. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified as
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to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
Section 906. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
Nine shall conform to the requirements of the Trust Indenture Act as then
in effect.
ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL AND ANY PREMIUM, INTEREST AND
ADDITIONAL AMOUNTS.
The Company covenants and agrees for the benefit of the Holders
of the Securities of each series that it will duly and punctually pay the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities of such series in accordance with the terms
thereof, any Coupons appertaining thereto and this Indenture. Any interest
due on any Bearer Security on or before the Maturity thereof, and any
Additional Amounts payable with respect to such interest, shall be payable
only upon presentation and surrender of the Coupons appertaining thereto
for such interest as they severally mature.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for any
series of Securities an Office or Agency where Securities of such series
(but not Bearer Securities, except as otherwise provided below, unless such
Place of Payment is located outside the United States) may be presented or
surrendered for payment, where Securities of such series may be surrendered
for registration of transfer or exchange and where notices and demands to
or upon the Company in respect of the Securities of such series relating
thereto and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company shall maintain, subject to any
laws or regulations applicable thereto, an Office or Agency in a Place of
Payment for such series which is located outside the United States where
Securities of such series and any Coupons appertaining thereto may be
presented and surrendered for payment; PROVIDED, HOWEVER, that if the
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Securities of such series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock
exchange shall so require, the Company shall maintain a Paying Agent in
London, Luxembourg or any other required city located outside the United
States, as the case may be, when and so long as the Securities of such
series are listed on such exchange. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of
such Office or Agency. If at any time the Company shall fail to maintain
any such required Office or Agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of such series and any Coupons appertaining
thereto may be presented and surrendered for payment at the place specified
for the purpose with respect to such Securities as provided in or pursuant
to this Indenture, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect
to Bearer Securities shall be made at any Office or Agency in the United
States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
PROVIDED, HOWEVER, if amounts owing with respect to any Bearer Securities
shall be payable in Dollars, payment of principal of, any premium or
interest on and any Additional Amounts with respect to any such Security
may be made at the Corporate Trust Office of the Trustee or any Office or
Agency designated by the Company in the City of Grand Rapids, Michigan, if
(but only if) payment of the full amount of such principal, premium,
interest or Additional Amounts at all offices outside the United States
maintained for such purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more
other Offices or Agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; PROVIDED, HOWEVER, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an Office or Agency in each Place of Payment for Securities of any
series for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other Office or Agency. Unless otherwise provided in
or pursuant to this Indenture, the Company each hereby designates as the
Place of Payment for each series (other than Bearer Securities) the City of
Grand Rapids, Michigan, and initially appoints the Office or Agency of the
Company for such purpose. Pursuant to Section 301(9) of this Indenture,
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the Company may subsequently appoint a place or places in the City of Grand
Rapids, Michigan, where such Securities may be payable.
Section 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date
of the principal of, any premium or interest on or Additional Amounts with
respect to any of the Securities of such series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum of Money
sufficient to pay the principal or any premium, interest or Additional
Amounts so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and shall promptly notify the
Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the
principal of, any premium or interest on or any Additional Amounts with
respect to any Securities of such series, deposit with any Paying Agent a
sum of Money sufficient to pay the principal or any premium, interest or
Additional Amounts so becoming due, such sum to be held in trust for the
benefit of the Persons entitled thereto, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee in writing of its
action or failure so to act.
The Company shall cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the
principal of, any premium or interest on or any Additional
Amounts with respect to Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as provided in
or pursuant to this Indenture;
(2) give the Trustee written notice of any default by the
Company (or any other obligor upon the Securities of such series)
in the making of any payment of principal, any premium or
interest on or any Additional Amounts with respect to the
Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same terms as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such Money.
Except as otherwise provided in or pursuant to this Indenture,
any Money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, any premium or
interest on or any Additional Amounts with respect to any Security of any
series and remaining unclaimed for 2 years after such principal or any such
premium or interest or any such Additional Amounts shall have become due
and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Security or any Coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust Money, and all liability of the Company as trustee thereof, shall
thereupon cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in an Authorized Newspaper in each
Place of Payment for such series or to be mailed to Holders of Registered
Securities of such series, or both, notice that such Money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication or mailing nor shall it be
later than 2 years after such principal and any premium or interest or
Additional Amounts shall have become due and payable, any unclaimed balance
of such Money then remaining will be repaid to the Company.
Prior to the appointment of any Paying Agent (other than the
Company) by the Company for any series of Securities, the Company shall
give written notice of such appointment (which notice shall include the
address for purposes of notice hereunder of such Paying Agent) to the
Holders of the Securities of such series in accordance with the terms of
such series established hereby or pursuant hereto.
Section 1004. ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of
Additional Amounts, the Company agrees to pay to the Holder of any such
Security or any Coupon appertaining thereto Additional Amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context,
the payment of the principal of or any premium or interest on, or in
respect of, any Security of any series or any Coupon or the net proceeds
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received on the sale or exchange of any Security of any series, such
mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express
mention of the payment of Additional Amounts (if applicable) in any
provision hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture, if
the Securities of a series provide for the payment of Additional Amounts,
at least 10 days prior to the first Interest Payment Date with respect to
such series of Securities (or if the Securities of such series shall not
bear interest prior to Maturity, the first day on which a payment of
principal is made), and at least 10 days prior to each date of payment of
principal or interest if there has been any change with respect to the
matters set forth in the below-mentioned Officers' Certificate, the Company
shall furnish to the Trustee and the principal Paying Agent or Paying
Agents, if other than the Trustee, an Officers Certificate setting forth
any Additional Amounts due, including their calculation, and instructing
the Trustee and such Paying Agent or Paying Agents whether such payment of
principal of or interest on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto
who are United States Aliens without withholding for or on account of any
tax, assessment or other governmental charge described in the Securities of
such series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required
to be withheld on such payments to such Holders of Securities or Coupons,
and the Company agrees to pay to the Trustee or such Paying Agent the
Additional Amounts required by the terms of such Securities. The Company
covenants to pay any Additional Amounts due and to indemnify the Trustee
and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to
this Section.
Section 1005. LIMITATION ON LIENS.
The Company will not pledge, mortgage or hypothecate, or permit
to exist any pledge, mortgage or hypothecation or other lien upon, any
shares of Common Stock of a Principal Constituent Bank to secure any
indebtedness for borrowed money without making effective provisions whereby
the Securities shall be equally and ratably secured with any and all such
indebtedness.
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In case the Company shall propose to pledge, mortgage or
hypothecate any such shares of Common Stock at any time owned by it to
secure any indebtedness, the Company will prior thereto give written notice
thereof to the Trustee and will prior to or simultaneously with such
pledge, mortgage or hypothecation, by supplemental indenture delivered to
the Trustee, in form satisfactory to it, effectively secure all the
Securities equally and ratably with such indebtedness, by pledge, mortgage
or hypothecation of such shares of Common Stock. Such supplemental
indenture shall contain the provisions concerning the possession, control,
release and substitution of mortgaged and pledged property and securities
and other appropriate matters which are required or are permitted by the
Trust Indenture Act (as in effect at the date of execution of such
supplemental indenture) to be included in a secured indenture qualified
under said Trust Indenture Act, and may also contain such additional and
amendatory provisions permitted by said Trust Indenture Act as the Company
and the Trustee shall deem advisable or appropriate or as the Trustee shall
deem necessary in connection with such pledge, mortgage or hypothecation.
Section 1006. LIMITATION UPON SALE OR ISSUANCE OF CAPITAL STOCK
OF CERTAIN SUBSIDIARIES.
Except as set forth below, the Company will not sell, assign,
pledge or otherwise grant a security interest in, transfer or otherwise
dispose of, or permit the issuance of, or permit a Subsidiary to sell,
assign, pledge or otherwise grant a security interest in, transfer, or
dispose of, any shares of, or any securities convertible into, or options,
warrants or rights to subscribe for or purchase shares of, Capital Stock of
any Subsidiary which is: (a) a Principal Constituent Bank; or (b) a
Subsidiary which owns shares of, or any securities convertible into, or
options, warrants or rights to subscribe for or purchase shares of, Capital
Stock of a Principal Constituent Bank; PROVIDED, HOWEVER, nothing in this
Section shall prohibit (i) any dispositions made by the Company or any
Subsidiary (A) acting in a fiduciary capacity for any person other than the
Company or any Subsidiary or (B) to the Company or any of its wholly owned
(except for directors' qualifying shares) Subsidiaries or (ii) the merger
or consolidation of a Principal Constituent Bank with and into a
Constituent Bank or the merger or consolidation of any Principal
Constituent Bank with and into any other Principal Constituent Bank.
Notwithstanding the foregoing, sales, assignments, pledges or
other grants of a security interest in, transfers, issuances or other
dispositions of shares of Capital Stock of a corporation referred to in (a)
or (b) above may be made where:
(i) the sales, assignments, pledges or other grants of a
security interest, transfers, issuances or other dispositions are
made, in the minimum amount required by law, to any Person for
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the purpose of the qualification of such Person to serve as a
director; or
(ii) the sales, assignments, pledges or other grants of a
security interest, transfers, issuances or other dispositions are
made in compliance with an order of a court or regulatory
authority of competent jurisdiction or as a condition imposed by
any such court or authority to the acquisition by the Company,
directly or indirectly, of any other corporation or entity; or
(iii) in the case of a disposition or issuance of shares
of Capital Stock or any securities convertible into Capital Stock
of a Principal Constituent Bank, or sales of Capital Stock or any
securities convertible into Capital Stock of any Subsidiary
included in Clause (b) above, the sales, assignments, pledges or
other grants of a security interest, transfers, issuances or
other dispositions are for fair market value (as determined by
the Board of Directors of the Company and the Subsidiary
disposing of such shares or securities, such determination being
evidenced by a Board Resolution) and, after giving effect to such
disposition and to any potential dilution (if the shares or
securities are convertible into Capital Stock), the Company and
its directly or indirectly wholly owned (except for directors'
qualifying shares) Subsidiaries will own directly not less than
80 percent of the Voting Stock of such Principal Constituent Bank
or Subsidiary; or
(iv) a Principal Constituent Bank sells additional shares of
Capital Stock to its stockholders at any price, so long as
immediately after such sale the Company owns, directly or
indirectly, at least as great a percentage of the Voting Stock of
such Principal Constituent Bank as it owned prior to such sale of
additional shares.
Section 1007. LIMITATION ON CERTAIN ACQUISITIONS.
The Company will not (a) acquire the Capital Stock of any
corporation or (b) acquire substantially all the assets and liabilities of
any corporation if, immediately upon giving effect to such acquisition, the
Company would not then be in full compliance with all the terms, conditions
and covenants contained in this Indenture.
Section 1008. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
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corporate existence and that of each Principal Constituent Bank and their
respective rights (charter and statutory) and franchises; PROVIDED,
HOWEVER, that the foregoing shall not obligate the Company or any Principal
Constituent Bank to preserve any such right or franchise if the Company or
such Principal Constituent Bank, as the case may be, shall determine that
the preservation thereof is no longer desirable in the conduct of the
business of the Company or the business of such Principal Constituent Bank
and that the loss thereof is not disadvantageous in any material respect to
any Holder.
Section 1009. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1005, 1006, 1007 or
1008 with respect to the Securities of any series if before the time for
such compliance the Holders of at least a majority in principal amount of
the Outstanding Securities of such series, by Act of such Holders, either
shall waive such compliance in such instance or generally shall have waived
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent
so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
Section 1010. COMPANY STATEMENT AS TO COMPLIANCE, NOTICE OF
CERTAIN DEFAULTS.
(a) The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year (which on the date hereof
ends on December 31), a written statement (which need not be
contained in or accompanied by an Officers' Certificate) signed
by the principal executive officer, the principal financial
officer or the principal accounting officer of the Company,
stating that
(1) a review of the activities of the Company during
such year and of its performance under this Indenture has
been made under his or her supervision, and
(2) to the best of his or her knowledge, based on such
review, (a) the Company has complied with all the conditions
and covenants imposed on it under this Indenture throughout
such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying
each such default known to him or her and the nature and
status thereof; and (b) no event has occurred and is
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continuing which is, or after notice or lapse of time or
both would become, an Event of Default, or, if such an event
has occurred and is continuing, specifying each such event
known to him and the nature and status thereof.
(b) The Company shall deliver to the Trustee, within 5 days
after the occurrence thereof, written notice of any event which
after notice or lapse of time or both would become an Event of
Default.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. APPLICABILITY OF ARTICLE.
Redemption of Securities of any series at the option of the
Company as permitted or required by the terms of such Securities shall be
made in accordance with the terms of such Securities and (except as
otherwise provided herein or pursuant hereto) this Article.
Section 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption
at the election of the Company of the Securities of any series, with the
same issue date, interest rate, Stated Maturity and other terms, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the principal
amount of Securities of such series to be redeemed.
Section 1103. SELECTION BY TRUSTEE OF SECUIITIES TO BE REDEEMED.
If less than all the Securities of any series with the same issue
date, interest rate, Stated Maturity and other terms are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption,
substantially pro rata, by lot, or by such other method that the Trustee
shall deem fair and appropriate and, if the Securities are listed on any
securities exchange, that complies with the requirements of such exchange.
The Trustee may provide for the selection for redemption of portions of the
principal amount of Registered Securities of such series; PROVIDED,
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HOWEVER, that no such partial redemption shall reduce the portion of the
principal amount of a Registered Security of such series not redeemed to
less than the minimum denomination for a Security of such series
established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
Section 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be
redeemed, to the Holders of Securities to be redeemed. Failure to give
notice by mailing in the manner herein provided to the Holder of any
Registered Securities designated for redemption as a whole or in part, or
any defect in the notice to any such Holder, shall not affect the validity
of the proceedings for the redemption of any other Securities or portion
thereof.
Any notice that is mailed to the Holder of any Registered
Securities in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the ease of
partial redemption, the principal amount) of the particular
Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the
Holder of such Security will receive, without charge, a new
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Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(5) that, on the Redemption Date, the Redemption Price
shall become due and payable upon each such Security or portion
thereof to be redeemed, and, if applicable, that interest and
Additional Amounts, if any, thereon shall cease to accrue on and
after said date;
(6) the place or places where such Securities, together (in
the case of Bearer Securities) with all Coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and any accrued
interest and Additional Amounts pertaining thereto;
(7) that the redemption is for a sinking fund, if such is
the case;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must
be accompanied by all Coupons maturing subsequent to the date
fixed for redemption or the amount of any such missing Coupon or
Coupons will be deducted from the Redemption Price, unless
security or indemnity satisfactory to the Company, the Trustee
and any Paying Agent is furnished;
(9) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to redemption on the Redemption
Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made;
and
(10) the CUSIP number or the Euro-clear or the CEDEL
reference numbers of such Securities, if any (or any other
numbers used by a Depository to identify such Securities).
A notice of redemption published as contemplated by Section 106
need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request,
by the Trustee in the name and at the expense of the Company.
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Section 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of Money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) any
accrued and unpaid interest on and Additional Amounts with respect thereto,
all the Securities or portions thereof which are to be redeemed on that
date.
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest
and the Coupons for such interest appertaining to any Bearer Securities so
to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Security for redemption in accordance with said
notice, together with all Coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at
the Redemption Price, together with any accrued interest and Additional
Amounts to the Redemption Date; PROVIDED, HOWEVER, that installments of
interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only upon presentation and surrender of
Coupons for such interest (at an Office or Agency located outside the
United States except as otherwise provided in Section 1002), and PROVIDED,
FURTHER, that installments of interest on Registered Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record
Dates therefor according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent any such missing Coupon in respect of which a deduction
shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; PROVIDED, HOWEVER, that any
interest or Additional Amounts represented by Coupons shall be payable only
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upon presentation and surrender of those Coupons at an Office or Agency for
such Security located outside of the United States except as otherwise
provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until
paid, shall bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part
shall be surrendered at any Office or Agency designated by the Company for
such Security (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Registered Security or Securities of the same
series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the
Security so surrendered. If a Security in global form is so surrendered,
the Company shall execute, and the Trustee shall authenticate and deliver
to the U.S. Depository or other Depository for such Security in global form
as shall be specified in the Company Order with respect thereto to the
Trustee, without service charge, a new Security in global form in a
denomination equal to and in exchange for the unredeemed portion of the
principal of the Security in global form so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise
permitted or required by any form of Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of such series is herein referred
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to as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of any series to be
made pursuant to the terms of such Securities, (1) deliver Outstanding
Securities of such series (other than any of such Securities previously
called for redemption or any of such Securities in respect of which cash
shall have been released to the Company), together in the case of any
Bearer Securities of such series with all unmatured Coupons appertaining
thereto, and (2) apply as a credit Securities of such series which have
been redeemed either at the election of the Company pursuant to the terms
of such series of Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities,
provided that such series of Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly. If as a result of the
delivery or credit of Securities of any series in lieu of cash payments
pursuant to this Section 1202, the principal amount of Securities of such
series to be redeemed in order to exhaust the aforesaid cash payment shall
be less than $100,000, the Trustee need not call Securities of such series
for redemption, except upon Company Request, and such cash payment shall be
held by the Trustee or a Paying Agent and applied to the next succeeding
sinking fund payment, PROVIDED, HOWEVER, that the Trustee or such Paying
Agent shall at the written request of the Company from time to time pay
over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of
Securities of that series purchased by the Company having an unpaid
principal amount equal to the cash payment requested to be released to the
Company.
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 75 days prior to each sinking fund payment date for
any series of Securities, the Company shall deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing mandatory
sinking fund payment for that series pursuant to the terms of that series,
the portion thereof, if any, which is to be satisfied by payment of cash
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and the portion thereof, if any, which is to be satisfied by delivering and
crediting of Securities of that series pursuant to Section 1202, and the
optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and will also deliver to the Trustee any Securities
to be so credited and not theretofore delivered. If such Officers'
Certificate shall specify an optional amount to be added in cash to the
next ensuing mandatory sinking fund payment, the Company shall thereupon be
obligated to pay the amount therein specified. Not less than 60 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance
with the terms of the Securities of such series. The repayment of any
principal amount of Securities pursuant to such option of the Holder to
require repayment of Securities before their Stated Maturity, for purposes
of Section 309, shall not operate as a payment, redemption or satisfaction
of the indebtedness represented by such Securities unless and until the
Company, at its option, shall deliver or surrender the same to the Trustee
with a written directive that such Securities be canceled. Notwithstanding
anything to the contrary contained in this Section 1301, in connection with
any repayment of Securities, the Company may arrange for the purchase of
any Securities by an agreement with one or more investment bankers or other
purchasers to purchase such Securities by paying to the Holders of such
Securities on or before the close of business on the repayment date an
amount not less than the repayment price payable by the Company on
repayment of such Securities, and the obligation of the Company to pay the
repayment price of such Securities shall be satisfied and discharged to the
extent such payment is so paid by such purchasers.
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ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. APPLICABILITY OF ARTICLE.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series
in which not all of such Securities are denominated in the same Currency,
or (ii) any distribution to Holders of Securities, in the absence of any
provision to the contrary in the form of Security of any particular series,
any amount in respect of any Security denominated in a Currency other than
Dollars shall be treated for any such action or distribution as that amount
of Dollars that could be obtained for such amount on such reasonable basis
of exchange and as of the record date with respect to Registered Securities
of such series (if any) for such action, determination of rights or
distribution (or, if there shall be no applicable record date, such other
date reasonably proximate to the date of such action, determination of
rights or distribution) as the Company may specify in a written notice to
the Trustee or, in the absence of such written notice, as the Trustee may
determine.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be called at
any time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
Section 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders
of Securities of any series for any purpose specified in Section
1501, to be held at such time and at such place in
______________________ or, if Securities of such series have been
issued in whole or in part as Bearer Securities, in __________ or
in such place outside the United States as the Trustee shall
determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such
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meeting, shall be given, in the manner provided in Section 106,
not less than 21 nor more than 180 days prior to the date fixed
for the meeting.
(b) In case at any time the Company (by or pursuant to a
Board Resolution) or the Holders of at least 10 percent in
principal amount of the Outstanding Securities of any series
shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section
1501, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting
within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such
series in the amount above specified, as the case may be, may
determine the time and the place in
________________________________ if Securities of such series are
to be issued as Bearer Securities, in _____________ for such
meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
Section 1503. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders of
Securities of any series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
Section 1504. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a
quorum within 30 minutes after the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the
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chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 1502(a), except that such notice need be given only
once not less than 5 days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted only by the affirmative vote
of the Holders of a majority in principal amount of the Outstanding
Securities of that series; PROVIDED, HOWEVER, that, except as limited by
the proviso to Section 902, any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of
such series.
Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section shall
be binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or
represented at the meeting.
Section 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of such series
in regard to proof of the holding of Securities of such series
and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company,
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bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in
Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall
have been called by the Company or by Holders of Securities as
provided in Section 1502(b), in which case the Company or the
Holders of Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a
majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting, each Holder of a Security of such
series or proxy shall be entitled to one vote for each $1,000
principal amount of Securities of such series held or represented
by him; PROVIDED, HOWEVER, that no vote shall be cast or counted
at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may
be adjourned from time to time by Persons entitled to vote a
majority in principal amount of the Outstanding Securities of
such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
Section 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders
of Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of
Holders of Securities of any series shall be prepared by the secretary of
-86-
<PAGE>
the meeting and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
given as provided in Section 1502 and, if applicable, Section 1504. Each
copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered
to the Company, and another to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted at the meeting. Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed, all as of the day and year first above written.
[SEAL] OLD KENT FINANCIAL CORPORATION
Attest:
By
Name:
Title:
[SEAL]
____________________________________
Attest:
By
Name:
Title:
-88-
<PAGE>
EXHIBIT 4.11
Old Kent Financial Corporation
ISSUER
to
[ ]
TRUSTEE
________________
SUBORDINATED INDENTURE
_________________
Dated as of , 199_
Subordinated Debt Securities
<PAGE>
OLD KENT FINANCIAL CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939, as
amended, and Subordinated Indenture, dated as of November 1, 1995.
TRUST INDENTURE ACT SECTION INDENTURE SECTION
<Section> 310(a)(1). . . . . . . . . . . . . . . . . . . . 606
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 606
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . 108
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 108
(c). . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
<Section> 311(a) . . . . . . . . . . . . . . . . . . . . . 108
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 108
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . 108
(c). . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
<Section> 312(a).. . . . . . . . . . . . . . . . . . . . . 701, 702
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c). . . . . . . . . . . . . . . . . . . . . . . . . . 702
<Section> 313(a) . . . . . . . . . . . . . . . . . . . . . 703(a, 703(b)
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . 108
(c). . . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
(d). . . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
<Section> 314(a) . . . . . . . . . . . . . . . . . . . . . 704
(b). . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d). . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e). . . . . . . . . . . . . . . . . . . . . . . . . . 102
<Section> 314(a).. . . . . . . . . . . . . . . . . . . . . 108
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 611
(c). . . . . . . . . . . . . . . . . . . . . . . . . . 108
(d). . . . . . . . . . . . . . . . . . . . . . . . . . 108
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . 108
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . 108
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . 108
(e). . . . . . . . . . . . . . . . . . . . . . . . . . 108
<Section> 316(a) . . . . . . . . . . . . . . . . . . . . . 104
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . 502, 512
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<PAGE>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 508
<Section> 317(a)(1). . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 504
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 1003
<Section> 318(a) . . . . . . . . . . . . . . . . . . . . . 108
____________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of this Subordinated Indenture.
-ii-
<PAGE>
TABLE OF CONTENTS
PAGE
R E C I T A L S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 101. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . .1
Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . .2
Affiliate. . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . .2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . .2
Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Bearer Security. . . . . . . . . . . . . . . . . . . . . . . . .3
Board of Directors . . . . . . . . . . . . . . . . . . . . . . .3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . .3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . .3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . .3
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Company Request" and "Company Order. . . . . . . . . . . . . . .3
Constituent Bank . . . . . . . . . . . . . . . . . . . . . . . .3
Convertible Security" or "Convertible Securities . . . . . . . .3
Conversion Price . . . . . . . . . . . . . . . . . . . . . . . .4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . .4
Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . .4
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Currency" or "Money. . . . . . . . . . . . . . . . . . . . . . .4
Currency Indexed Note. . . . . . . . . . . . . . . . . . . . . .4
Date of Conversion . . . . . . . . . . . . . . . . . . . . . . .4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . .4
Dollars" or "$ . . . . . . . . . . . . . . . . . . . . . . . . .4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . .4
Government Obligations . . . . . . . . . . . . . . . . . . . . .4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Independent Public Accountants . . . . . . . . . . . . . . . . .5
Indexed Security . . . . . . . . . . . . . . . . . . . . . . . .5
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Interest Payment Date. . . . . . . . . . . . . . . . . . . . . .5
Legal Holiday. . . . . . . . . . . . . . . . . . . . . . . . . .5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Office or Agency . . . . . . . . . . . . . . . . . . . . . . . .6
Officers' Certificate. . . . . . . . . . . . . . . . . . . . . .6
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . .6
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<PAGE>
Original Issue Discount Security . . . . . . . . . . . . . . . .6
Outstanding. . . . . . . . . . . . . . . . . . . . . . . . . . .6
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . .7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . .7
Predecessor Security . . . . . . . . . . . . . . . . . . . . . .7
Principal Constituent Bank . . . . . . . . . . . . . . . . . . .7
Redemption Date. . . . . . . . . . . . . . . . . . . . . . . . .8
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . .8
Registered Security. . . . . . . . . . . . . . . . . . . . . . .8
Regular Record Date. . . . . . . . . . . . . . . . . . . . . . .8
Responsible Officer. . . . . . . . . . . . . . . . . . . . . . .8
Security" or "Securities . . . . . . . . . . . . . . . . . . . .8
Security Register" and "Security Registrar . . . . . . . . . . .8
Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . . .8
Special Record Date. . . . . . . . . . . . . . . . . . . . . . .8
Stated Maturity. . . . . . . . . . . . . . . . . . . . . . . . .9
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . .9
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
United States. . . . . . . . . . . . . . . . . . . . . . . . . .9
United States Alien. . . . . . . . . . . . . . . . . . . . . . .9
U.S. Depository" or "Depository. . . . . . . . . . . . . . . . .9
Vice President . . . . . . . . . . . . . . . . . . . . . . . . .9
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS . . . . . . . . 10
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE . . . . . . . 10
Section 104. ACTS OF HOLDERS. . . . . . . . . . . . . . . . . . . 10
Section 105. NOTICES, ETC. TO TRUSTEE AND COMPANY . . . . . . . . 13
Section 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER. . . . . . . 13
Section 107. LANGUAGE OF NOTICES. . . . . . . . . . . . . . . . . 14
Section 108. CONFLICT WITH TRUST INDENTURE ACT. . . . . . . . . . 14
Section 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS . . . . . . 14
Section 110. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . 15
Section 111. SEPARABILITY CLAUSE. . . . . . . . . . . . . . . . . 15
Section 112. BENEFITS OF INDENTURE. . . . . . . . . . . . . . . . 15
Section 113. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . 15
Section 114. LEGAL HOLIDAYS . . . . . . . . . . . . . . . . . . . 15
Section 115. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . 16
ARTICLE TWO - SECURITIES FORMS . . . . . . . . . . . . . . . . . . . . . 16
Section 201. FORMS GENERALLY. . . . . . . . . . . . . . . . . . . 16
Section 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. . . 16
Section 203. SECURITIES IN GLOBAL FORM. . . . . . . . . . . . . . 17
ARTICLE THREE - THE SECURITIES . . . . . . . . . . . . . . . . . . . . . 17
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES . . . . . . . . 17
Section 302. CURRENCY; DENOMINATIONS. . . . . . . . . . . . . . . 21
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<PAGE>
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING . . . 21
Section 304. TEMPORARY SECURITIES . . . . . . . . . . . . . . . . 23
Section 305. REGISTRATION, TRANSFER AND EXCHANGE. . . . . . . . . 24
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES . . 27
Section 307. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL AMOUNTS;
RIGHTS TO INTEREST AND CERTAIN ADDITIONAL AMOUNTS
PRESERVED. . . . . . . . . . . . . . . . . . . . . . 28
Section 308. PERSONS DEEMED OWNERS. . . . . . . . . . . . . . . . 30
Section 309. CANCELLATION . . . . . . . . . . . . . . . . . . . . 31
Section 310. COMPUTATION OF INTEREST. . . . . . . . . . . . . . . 31
Section 311. FORMS OF CERTIFICATION . . . . . . . . . . . . . . . 31
Section 312. JUDGMENTS. . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE FOUR - SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . . . 33
Section 401. SATISFACTION AND DISCHARGE . . . . . . . . . . . . . 33
Section 402. APPLICATION OF TRUST MONEY . . . . . . . . . . . . . 34
Section 403. REINSTATEMENT. . . . . . . . . . . . . . . . . . . . 35
ARTICLE FIVE - REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 501. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . 35
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT . 36
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . 37
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . . . . 38
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS. . . . . . . . . . . . . . . . 38
Section 506. APPLICATION OF MONEY COLLECTED . . . . . . . . . . . 39
Section 507. LIMITATIONS ON SUITS . . . . . . . . . . . . . . . . 39
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND
ANY PREMIUM, INTEREST AND ADDITIONAL AMOUNTS . . . . 40
Section 509. RESTORATION OF RIGHTS AND REMEDIES . . . . . . . . . 40
Section 510. RIGHTS AND REMEDIES CUMULATIVE . . . . . . . . . . . 40
Section 511. DELAY OR OMISSION NOT WAIVER . . . . . . . . . . . . 41
Section 512. CONTROL BY HOLDERS OF SECURITIES . . . . . . . . . . 41
Section 513. WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . 41
Section 514. WAIVER OF STAY OR EXTENSION LAWS . . . . . . . . . . 42
Section 515. UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . 42
ARTICLE SIX - THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . 43
Section 601. CERTAIN DUTIES AND RESPONSIBILITIES. . . . . . . . . 43
Section 602. CERTAIN RIGHTS OF TRUSTEE. . . . . . . . . . . . . . 44
Section 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES . . . . . . . . . . . . . . . . . . . . . 45
Section 604. MAY HOLD SECURITIES. . . . . . . . . . . . . . . . . 45
Section 605. MONEY HELD IN TRUST. . . . . . . . . . . . . . . . . 46
Section 606. COMPENSATION AND REIMBURSEMENT . . . . . . . . . . . 46
Section 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTEREST . . . . . . . . . . . . . . . . . . . . . . 47
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<PAGE>
Section 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. . 47
Section 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR . . . . . . . 49
Section 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS . . . . . . . . . . . . . . . . . . . . . . 50
Section 611. APPOINTMENT OF AUTHENTICATING AGENT. . . . . . . . . 50
Section 612. NOTICE OF DEFAULT. . . . . . . . . . . . . . . . . . 52
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY. . . . 53
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS. . . . . . . . . . . . . . . . . . . . . . . 53
Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS53
Section 703. REPORTS BY TRUSTEE . . . . . . . . . . . . . . . . . 54
Section 704. REPORTS BY COMPANY . . . . . . . . . . . . . . . . . 54
ARTICLE EIGHT - CONSOLIDATION, MERGER AND SALES. . . . . . . . . . . . . 55
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS 55
Section 802. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY . . . . . . 55
ARTICLE NINE - SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . 56
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS . 56
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. . . 57
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES . . . . . . . . 59
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES. . . . . . . . . . 59
Section 905. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES . 59
Section 906. EFFECT ON SENIOR INDEBTEDNESS. . . . . . . . . . . . 59
Section 907. CONFORMITY WITH TRUST INDENTURE ACT. . . . . . . . . 59
ARTICLE TEN - COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 1001. PAYMENT OF PRINCIPAL AND ANY PREMIUM, INTEREST AND
ADDITIONAL AMOUNTS . . . . . . . . . . . . . . . . . 60
Section 1002. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . 60
Section 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. . 61
Section 1004. ADDITIONAL AMOUNTS . . . . . . . . . . . . . . . . . 62
Section 1005. [RESERVED].. . . . . . . . . . . . . . . . . . . . . 63
Section 1006. CORPORATE EXISTENCE. . . . . . . . . . . . . . . . . 63
Section 1007. WAIVER OF CERTAIN COVENANTS. . . . . . . . . . . . . 64
Section 1008. COMPANY STATEMENT AS TO COMPLIANCE; NOTICE OF CERTAIN
DEFAULTS . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE ELEVEN - REDEMPTION OF SECURITIES. . . . . . . . . . . . . . . . 65
Section 1101. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . 65
Section 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. . . . . . . . 65
Section 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. . 65
Section 1104. NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . 66
Section 1105. DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . 67
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE. . . . . . . . 67
Section 1107. SECURITIES REDEEMED IN PART. . . . . . . . . . . . . 68
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<PAGE>
ARTICLE TWELVE - SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . 69
Section 1201. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . 69
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES69
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. . . . . . 70
ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS. . . . . . . . . . 70
Section 1301. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . 70
ARTICLE FOURTEEN - SECURITIES IN FOREIGN CURRENCIES. . . . . . . . . . . 71
Section 1401. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . 71
ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES. . . . . . . . . . . 71
Section 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. . . . . . 71
Section 1502. CALL, NOTICE AND PLACE OF MEETINGS . . . . . . . . . 71
Section 1503. PERSONS ENTITLED TO VOTE AT MEETINGS . . . . . . . . 72
Section 1504. QUORUM; ACTION . . . . . . . . . . . . . . . . . . . 72
Section 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS. . . . . . . . . . . . . . . . . . . . . 73
Section 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. . . 74
ARTICLE SIXTEEN - CONVERSION OF SECURITIES . . . . . . . . . . . . . . . 74
Section 1601. CONVERSION PRIVILEGE . . . . . . . . . . . . . . . . 74
Section 1602. MANNER OF EXERCISE OF CONVERSION PRIVILEGE . . . . . 75
Section 1603. CASH ADJUSTMENT UPON CONVERSION. . . . . . . . . . . 76
Section 1604. CONVERSION PRICE . . . . . . . . . . . . . . . . . . 76
Section 1605. ADJUSTMENT OF CONVERSION PRICE . . . . . . . . . . . 76
Section 1606. EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS, MERGERS OR
SALES ON CONVERSION PRIVILEGE. . . . . . . . . . . . 79
Section 1607. TAXES ON CONVERSIONS . . . . . . . . . . . . . . . . 80
Section 1608. COMPANY TO RESERVE COMMON STOCK. . . . . . . . . . . 80
Section 1609. DISCLAIMER BY TRUSTEE OF RESPONSIBILITY FOR CERTAIN
MATTERS. . . . . . . . . . . . . . . . . . . . . . . 80
Section 1610. COMPANY TO GIVE NOTICE OF CERTAIN EVENTS . . . . . . 81
ARTICLE SEVENTEEN - SUBORDINATION OF SECURITIES. . . . . . . . . . . . . 82
Section 1701. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS . . . 82
Section 1702. SUBROGATION. . . . . . . . . . . . . . . . . . . . . 83
Section 1703. OBLIGATION OF COMPANY UNCONDITIONAL. . . . . . . . . 83
Section 1704. PAYMENTS ON SECURITIES PERMITTED . . . . . . . . . . 84
Section 1705. EFFECTUATION OF SUBORDINATION BY TRUSTEE . . . . . . 84
Section 1706. KNOWLEDGE OF AND NOTICE TO TRUSTEE . . . . . . . . . 84
Section 1707. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS. . . . . . 85
Section 1708. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT IMPAIRED85
ARTICLE EIGHTEEN - IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS . . . . . . . . . . . . . . . . . . . . . . 86
Section 1801. EXEMPTION FROM INDIVIDUAL LIABILITY. . . . . . . . . 86
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INDENTURE, dated as of [ , 199__] (the "Indenture"),
between Old Kent Financial Corporation, a corporation duly organized and
existing under the laws of the State of Michigan ( the "Company"), having
its principal executive office located at 111 Lyon Street NW, Grand
Rapids, Michigan 49503, and [ ], a [New York] banking
corporation (hereinafter called the "Trustee"), having its Corporate Trust
Office located at [
].
R E C I T A L S :
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured subordinated debentures, notes or other evidences of indebtedness
(hereinafter called the "Securities"), unlimited as to principal amount, to
bear such rates of interest, to mature at such time or times, to be issued
in one or more series and to have such other provisions as shall be fixed
as hereinafter provided.
The Company has duly authorized the execution and delivery of
this Indenture. All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder, the valid obligations of the
Company, in accordance with their terms, have been done.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder that are required
to be part of this Indenture and, to the extent applicable, shall be
governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof and any Coupons (as
herein defined) as follows:
<PAGE>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. DEFINITIONS.
Except as otherwise expressly provided in or pursuant to this
Indenture or unless the context otherwise requires, for all purposes of
this Indenture:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with United States
generally accepted accounting principles and, except as otherwise
herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required
or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation;
(4) the words "herein," "hereof," "hereto," and "hereunder"
and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision; and
(5) the word "or" is always used inclusively (for example,
the phrase "A or B" means "A or B or both," not "either A or B
but not both").
Certain terms used principally in certain Articles hereof are
defined in those Articles.
"Act," when used with respect to any Holders, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts that are
required hereby or by any Security, under circumstances specified herein or
therein, to be paid by the Company in respect of certain taxes, assessments
or other governmental charges imposed on Holders specified therein and that
are owing to such Holders.
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"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control," when used with respect to any specified Person,
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
the meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 610 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language
of the place of publication or in the English language, customarily
published on each day that is a Business Day in the place of publication,
whether or not published on days that are Legal Holidays in the place of
publication, and of general circulation in each place in connection with
which the term is used or in the financial community of each such place.
Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in
different newspapers in the same city meeting the foregoing requirements
and in each case on any day that is a Business Day in the place of
publication.
"Bank" means (i) any institution organized under the laws of the
United States, any State of the United States, the District of Columbia,
any territory of the United States, Puerto Rico, Guam, American Samoa or
the Virgin Islands that (a) accepts deposits that the depositor has the
legal right to withdraw on demand and (b) engages in the business of making
commercial loans, and (ii) any trust company organized under any of the
foregoing laws.
"Bearer Security" means any Security in the form established
pursuant to Section 201 that is payable to bearer.
"Board of Directors" means the board of directors of the Company
or any committee of that board duly authorized to act generally or in any
particular respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions,
certified by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, delivered to the Trustee.
"Business Day," unless otherwise specified with respect to any
Securities pursuant to Section 301, with respect to any Place of Payment or
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other location, means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a Legal Holiday in such Place of Payment or other location.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this Indenture
such Commission is not existing and performing the duties now assigned to
it under the Trust Indenture Act, then the body performing such duties at
such time.
"Common Stock" means, as to shares of a particular corporation,
outstanding shares of stock of any class whether now or hereafter
authorized that shall have ordinary power to vote for election of directors
of such corporation and by its terms shall not have any preference as to
distribution of assets upon any liquidation, dissolution or winding up of
such corporation.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person, and any other obligor upon the
Securities.
"Company Request" and "Company Order" mean, respectively, a
written request or order, as the case may be, signed in the name of the
Company by the Chairman of the Board of Directors, a Vice Chairman, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Constituent Bank" means any Subsidiary that is a Bank.
"Convertible Security" or "Convertible Securities" means any
Security or Securities, as the case may be, that are, by their terms
convertible or exchangeable into Common Stock or other securities.
"Conversion Price" means the price per share of Common Stock from
time to time in effect at which any Convertible Security may be converted
into Common Stock as determined by or pursuant to the terms of this
Indenture.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of original
execution of this Indenture is located at the address specified in the
first paragraph of this Indenture.
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"Corporation" includes corporations and, except for purposes of
Article Eight, associations, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency" or "Money," with respect to any payment, deposit or
other transfer in respect of the principal of or any premium or interest on
or any Additional Amounts with respect to any Security, means the unit or
units of legal tender for the payment of public and private debts (or any
composite thereof) in which such payment, deposit or other transfer is
required to be made by or pursuant to the terms hereof or such Security
and, with respect to any other payment, deposit or transfer pursuant to or
contemplated by the terms hereof or such Security, means Dollars.
"Currency Indexed Note" means any Security with the amount of
principal payments determined by reference to an index Currency.
"Date of Conversion," with respect to any Convertible Security or
portion thereof to be converted, means the date on which such Convertible
Security shall be surrendered for conversion and notice given in accordance
with the provisions of Article Sixteen.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of
America.
"Event of Default" has the meaning specified in Section 501.
"Government Obligations" means securities that are (i) direct
obligations of the government or governments that issued the Currency in
which the principal of or any premium or interest on such Security or any
Additional Amounts in respect thereof shall be payable, in each case where
the payment or payments thereunder are supported by the full faith and
credit of such government or governments or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
such government or governments, in each case where the payment or payments
thereunder are unconditionally guaranteed as a full faith and credit
obligation by such government or governments, and which, in the case of (i)
or (ii), are not callable or redeemable at the option of the issuer or
issuers thereof, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of or other
amount with respect to any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, PROVIDED
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that (except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal
of or other amount with respect to the Government Obligation evidenced by
such depository receipt.
"Holder," in the case of any Registered Security, means the
Person in whose name such Security is registered in the Security Register
and, in the case of any Bearer Security, means the bearer thereof and, in
the case of any Coupon, means the bearer thereof
"Indenture" means this instrument as it may from time to time be
supplemented, amended or modified by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and, with
respect to any Security, by the terms and provisions of such Security and
any Coupon appertaining thereto established pursuant to Section 301 (as
such terms and provisions may be amended or modified pursuant to the
applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other obligor under
the Securities or the Coupons, are independent public accountants within
the meaning of the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder, who may be the
independent public accountants regularly retained by the Company or who may
be other independent public accountants. Such accountants or firm shall be
entitled to rely upon any Opinion of Counsel as to the interpretation of
any legal matters relating to the Indenture or certificates required to be
provided hereunder.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.
"Interest," with respect to any Original Issue Discount Security
that by its terms bears interest only after Maturity, means interest
payable after Maturity and, when used with respect to a Security that
provides for the payment of Additional Amounts pursuant to Section 1004,
includes such Additional Amounts.
"Interest Payment Date," with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Legal Holiday," with respect to any Place of Payment or other
location, means a Saturday, a Sunday or a day on which banking institutions
or trust companies in such Place of Payment or other location are
authorized or obligated by law, regulation or executive order to be closed.
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"Maturity," with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due
and payable as provided in or pursuant to this Indenture, whether at the
Stated Maturity or by declaration of acceleration, notice of redemption,
notice of option to elect repayment or otherwise, and includes any
Redemption Date.
"Office or Agency," with respect to any Securities, means an
office or agency of the Company maintained or designated in a Place of
Payment for such Securities pursuant to Section 1002 or any other office or
agency of the Company maintained or designated for such Securities pursuant
to Section 1002 or, to the extent designated or required by Section 1002 in
lieu of such office or agency, the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, that complies with the requirements of Section
314(e) of the Trust Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be an employee of or counsel for the Company or other counsel who shall be
reasonably acceptable to the Trustee, that complies with the requirements
of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued
pursuant to this Indenture that provides for declaration of an amount less
than the principal face amount thereof to be due and payable upon
acceleration pursuant to Section 502.
"Outstanding," when used with respect to any Securities, means,
as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(a) any such Security theretofore canceled by the Trustee
or the Security Registrar or delivered to the Trustee or the
Security Registrar for cancellation;
(b) any such Security or portions thereof for whose payment
at the Maturity thereof Money in the necessary amount has been
theretofore deposited pursuant hereto with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities and any
Coupons appertaining thereto, PROVIDED that, if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
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<PAGE>
(c) any such Security that has been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, unless there shall have been presented to the Trustee
proof satisfactory to it that such Security is held by a bona
fide purchaser in whose hands such Security is a valid obligation
of the Company; and
(d) any such Security converted or exchanged as
contemplated by this Indenture into Common Stock or other
securities, if the terms of such Security provide for such
conversion or exchange pursuant to Section 301;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders of Securities for quorum purposes, (i) the
principal amount of an Original Issue Discount Security that may be counted
in making such determination and that shall be deemed to be Outstanding for
such purposes shall be equal to the amount of the principal thereof that
pursuant to the terms of such Original Issue Discount Security would be
declared (or shall have been declared to be) due and payable upon a
declaration of acceleration thereof pursuant to Section 502 at the time of
such determination, (ii) the principal amount of any Security denominated
other than in Dollars that may be counted in making such determination and
that shall be deemed Outstanding for such purpose shall be equal to the
Dollar equivalent, determined by the Company as of the date the Security is
originally issued by the Company, of the principal amount (or, in the case
of an Original Issue Discount Security, the Dollar equivalent as of such
date of original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any Indexed
Security that may be counted in making such determination and that shall be
deemed Outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise
provided in or pursuant to this Indenture, and (iv) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in making any such determination or relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned that shall have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee (A) the pledgee's right so to act with respect to such
Securities and (B) that the pledgee is not the Company or any other obligor
upon the Securities or any Coupons appertaining thereto or any Affiliate of
the Company or such other obligor.
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"Paying Agent" means any Person authorized by the Company to pay
the principal of, or any premium or interest on, or any Additional Amounts
with respect to any Security or any Coupon on behalf of the Company.
Unless otherwise provided in or pursuant to this Indenture, the Company
shall be the Paying Agent for each series of Securities and any Coupons
relating thereto.
"Person" means any individual, Corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," with respect to any Security, means the place
or places where the principal of, or any premium or interest on, or any
Additional Amounts with respect to such Security is payable as provided in
or pursuant to this Indenture.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a lost, destroyed, mutilated or stolen Security
or any Security to which a mutilated, destroyed, lost or stolen Coupon
appertains shall be deemed to evidence the same debt as the lost,
destroyed, mutilated or stolen Security or the Security to which a
mutilated, destroyed, lost or stolen Coupon appertains.
"Principal Constituent Bank" means a Constituent Bank the
consolidated assets of which constitute 25 percent or more of the Company's
consolidated assets as determined from the most recent statement of
financial condition of the Company.
"Redemption Date," with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture or such Security.
"Redemption Price," with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed as
determined by or pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to
Section 201 that is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any,
specified in or pursuant to this Indenture or such Security as the "Regular
Record Date."
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"Responsible Officer" means, when used with respect to the
Trustee, any officer within its Corporate Trust Office, including without
limitation any vice president, any assistant vice president, any assistant
secretary or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above-designated
officers, and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Security" or "Securities" means any Security or Securities, as
the case may be, authenticated and delivered under this Indenture;
PROVIDED, HOWEVER, that, if at any time there is more than one Person
acting as Trustee under this Indenture, "Securities," with respect to any
such Person, shall mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of and premium, if any,
and interest on any indebtedness of the Company for money borrowed
(including all indebtedness of the Company for borrowed and purchased money
of the Company, all obligations of the Company arising from off-balance
sheet guarantees by the Company and direct credit substitutes, and
obligations of the Company associated with derivative products such as
interest and foreign exchange rate contracts and commodity contracts) that
is outstanding on the date hereof or is hereafter created, incurred or
assumed, for the payment of which the Company is at the time of
determination responsible or liable as obligor, guarantor or otherwise, and
all deferrals, renewals, extensions and refundings of any such indebtedness
or obligations, other than (1) the Securities, (2) any other indebtedness
as to which, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such indebtedness is
subordinate in right of payment to any other indebtedness of the Company,
or (3) the Company's 6.625% Subordinated Notes due November 15, 2005.
"Special Record Date" for the payment of any Defaulted Interest
on any Registered Security means a date fixed by the Trustee pursuant to
Section 307.
"Stated Maturity," with respect to any Security or any
installment of principal thereof or interest thereon or any Additional
Amounts with respect thereto, means the date established by or pursuant to
this Indenture or such Security as the fixed date on which the principal of
such Security or such installment of principal or interest is or such
Additional Amounts are due and payable.
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"Subsidiary" means any Corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50 percent of the shares of Voting Stock.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a
particular provision thereof shall mean such act or provision, as the case
may be, as amended or replaced from time to time or as supplemented from
time to time by rules or regulations adopted by the Commission under or in
furtherance of the purposes of such act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become
such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall
mean each Person who is then a Trustee hereunder; PROVIDED, HOWEVER, that
if at any time there is more than one such Person, "Trustee" shall mean
each such Person and, as used with respect to the Securities of any series,
shall mean the Trustee with respect to the Securities of such series.
"United States," except as otherwise provided herein or in any
Security, means the United States of America (including the states thereof
and the District of Columbia), its territories and possessions and other
areas subject to its jurisdiction.
"United States Alien," except as otherwise provided in or
pursuant to this Indenture or any Security, means any Person who, for
United States federal income tax purposes, is a foreign corporation, a non-
resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust or a foreign partnership one or more of the members of
which is, for United States federal income tax purposes, a foreign
corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to any
Security issuable or issued in the form of one or more global Securities,
the Person designated as U.S. Depository or Depository by the Company in or
pursuant to this Indenture, which Person must be, to the extent required by
applicable law or regulation, a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and, if so provided with
respect to any Security, any successor to such Person. If at any time
there is more than one such Person, "U.S. Depository," or "Depository"
shall mean, with respect to any Securities, the qualifying entity that has
been appointed with respect to such Securities.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "Vice President."
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"Voting Stock" means stock of a Corporation of the class or
classes having general voting power under ordinary circumstances to elect
at least a majority of the board of directors, managers or trustees of such
Corporation, provided that, for the purposes hereof, stock that carries
only the right to vote conditionally on the happening of an event shall not
be considered voting stock whether or not such event shall have happened.
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent, if any, have
been complied with, except that in the case of any such application or
request as to which the furnishing of such documents or any of them is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion
need be furnished.
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel,
unless such officer knows, or in the exercise of reasonable care should
know, that such Opinion of Counsel with respect to the matters upon which
his certificate or opinion is based is erroneous. Any such Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual
matters is in the possession of the Company unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
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other instruments under this Indenture or any Security, they may, but need
not, be consolidated and form one instrument.
Section 104. ACTS OF HOLDERS.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this
Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly
appointed in writing. If, but only if, Securities of a series
are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided in or pursuant to this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities
of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with
the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and
the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting.
Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture
and (subject to Section 315 of the Trust Indenture Act)
conclusive in favor of the Trustee and the Company and any agent
of the Trustee or the Company, if made in the manner provided in
this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1506.
Without limiting the generality of this Section 104,
unless otherwise provided in or pursuant to this Indenture, a
Holder, including a U.S. Depository that is a Holder of a global
Security, may make, give or take, by a proxy, or proxies, duly
appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or
pursuant to this Indenture to be made, given or taken by Holders,
and a U.S. Depository that is a Holder of a global Security may
provide its proxy or proxies to the beneficial owners of
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interests in any such global Security through such U.S.
Depository's standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in
any permanent global Security held by a U.S. Depository entitled
under the procedures of such U.S. Depository to make, give or
take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent,
waiver or other Act provided in or pursuant to this Indenture to
be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed
proxy or proxies, and only such Persons, shall be entitled to
make, give or take such request, demand, authorization,
direction, notice, consent, waiver or other Act, whether or not
such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent,
waiver or other Act shall be valid or effective if made, given or
taken more than 90 days after such record date.
(2) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner
that the Trustee deems sufficient and in accordance with such
reasonable rules as the Trustee may determine; and the Trustee
may in any instance require further proof with respect to any of
the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of the
commencement and the date of the termination of holding the same,
shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of
Bearer Securities held by any Person, and the date of the
commencement and the date of the termination of holding the same,
may be proved by the production of such Bearer Securities or by a
certificate executed, as depositary, by any trust company, bank,
banker or other depositary reasonably acceptable to the Company
and the Trustee, wherever situated, if such certificate shall be
deemed by the Company and the Trustee to be satisfactory, showing
that at the date therein mentioned such Person had on deposit
with such depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect
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of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding.
The ownership, principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or
writing and the date of the commencement and the date of the
termination of holding the same may also be proved in any other
manner which the Company and the Trustee deem sufficient.
(5) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may
at its option (but is not obligated to), by Board Resolution, fix
in advance a record date, which record date shall be at least two
Business Days prior to such solicitation, for the determination
of Holders of Registered Securities entitled to give such
request, demand, authorization, direction, notice, consent,
waiver or other Act. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record
date, but only the Holders of Registered Securities of record at
the close of business on such record date shall be deemed to be
Holders for the purpose of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such
record date; provided that no such authorization, agreement or
consent by the Holders of Registered Securities shall be deemed
effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the
record date.
(6) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon,
whether or not notation of such Act is made upon such Security.
Section 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
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(1) the Trustee by any Holder or the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing, or transmitted by facsimile transmission
(confirmed by guaranteed overnight courier), to or with the
Trustee at its Corporate Trust Office or any other address
previously furnished in writing to the Company by the Trustee; or
(2) the Company by the Trustee or any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, or transmitted by facsimile transmission (confirmed by
guaranteed overnight courier), to the Company addressed to the
attention of its Treasurer at the address of its principal office
specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by
the Company.
Section 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of
Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class
postage prepaid, to each Holder of a Registered Security affected
by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized
Newspaper in The City of New York and, if such Securities are
then listed on any stock exchange outside the United States, in
an Authorized Newspaper in such city as the Company shall advise
the Trustee that such stock exchange so requires, on a Business
Day, at least twice, the first such publication to be not earlier
than the earliest date and the second such publication to be not
later than the latest date prescribed for the giving of such
notice.
In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder of a Registered Security
shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of
Bearer Securities given as provided herein. Any notice that is mailed in
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the manner herein provided shall be conclusively presumed to have been duly
given or provided. In the case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other
cause it shall be impracticable to publish any notice to Holders of Bearer
Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall
constitute sufficient notice to such Holders for every purpose hereunder.
Neither failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders of Securities
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
Section 107. LANGUAGE OF NOTICES.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in
the English language, except that, if the Company so elects, any published
notice may be in an official language of the country of publication.
Section 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with any
duties under any required provision of the Trust Indenture Act imposed
hereon by Section 318(c) thereof, such required provision shall control.
Section 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
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Section 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture, any Security or any
Coupon shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 112. BENEFITS OF INDENTURE.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto and
holders of Senior Indebtedness, any Security Registrar, any Paying Agent
and their successors hereunder and the Holders of Securities or Coupons,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 113. GOVERNING LAW.
This Indenture, the Securities and any Coupons shall be governed
by and construed in accordance with the laws of the State of New York
applicable to agreements made or instruments entered into and, in each
case, performed in said state.
Section 114. LEGAL HOLIDAYS.
Unless otherwise specified in or pursuant to this Indenture or
any Securities, in any case where any Interest Payment Date, Redemption
Date, Stated Maturity or Maturity of any Security or Coupon, or the last
date on which a Holder has the right to convert Convertible Securities,
shall be a Legal Holiday at any Place of Payment, then (notwithstanding any
other provision of this Indenture, any Security or any Coupon other than a
provision in any Security or Coupon that specifically states that such
provision shall apply in lieu hereof) payment need not be made at such
Place of Payment on such date and such Convertible Securities need not be
converted on such date, but such payment may be made, and such Convertible
Securities may be converted, on the next succeeding day that is a Business
Day at such Place of Payment with the same force and effect as if made on
the Interest Payment Date or Redemption Date, or on the last date on which
a Holder has the right to convert such Convertible Securities or at the
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Stated Maturity or Maturity, and no interest shall accrue on the amount
payable on such date or at such time for the period from and after such
Interest Payment Date, Redemption Date, Stated Maturity, Maturity, or last
date on which a Holder has the right to convert such Convertible
Securities, as the case may be, to the next succeeding Business Day.
Section 115. COUNTERPARTS.
This Indenture may be executed in several counterparts, each of
which shall be deemed to be an original and all of which shall together
constitute but one and the same instrument.
ARTICLE TWO
SECURITIES FORMS
Section 201. FORMS GENERALLY.
Each Registered Security, Bearer Security, Coupon and temporary
or permanent global Security issued pursuant to this Indenture shall be in
the form established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by or pursuant to this Indenture or any indenture supplemental hereto and
may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with
the rules of any securities exchange on which the Securities may be listed
or as may, consistently herewith, be determined by the officers executing
such Security or Coupon as evidenced by their execution of such Security or
Coupon. The Company shall provide any such legends or endorsements to the
Trustee in writing.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without
Coupons and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on
a steel engraved border or steel engraved borders or may be produced in any
other manner not inconsistent with the rules of any securities exchange on
which the Securities may be listed, all as determined by the officers of
the Company executing such Securities or Coupons, as evidenced by their
execution of such Securities or Coupons.
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Section 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 610, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: [ ], as Trustee
By
Authorized Signatory
Section 203. SECURITIES IN GLOBAL FORM.
If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series
(or such lesser amount as is permitted by the terms thereof) from time to
time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be
increased or reduced to reflect exchanges. Any endorsement of any Security
in global form to reflect the amount, or any increase or decrease in the
amount, or changes in the rights of Holders, of Outstanding Securities
represented thereby shall be made in such manner and by such Person or
Persons as shall be specified therein or in the Company Order to be
delivered pursuant to Section 303 or 304 with respect thereto. Subject to
the provisions of Section 303 and, if applicable, Section 304, the Trustee
shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to a Security in global form shall
be in writing but need not be accompanied by or contained in an Officers'
Certificate and need not be accompanied by an Opinion of Counsel.
ARTICLE THREE
THE SECURITIES
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The
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Securities may be issued in one or more series. The Securities shall be
subordinated in right of payment to Senior Indebtedness as provided in
Article Seventeen.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution
and set forth in an Officers' Certificate, or established in one or more
indentures supplemental hereto,
(1) the title of such Securities and the series in which
such Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series that
may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration or
transfer of, or in exchange for, or in lieu of, other Securities
of such series pursuant to Section 304, 305, 306, 905 or 1107,
upon repayment in part of any Registered Security of such series
pursuant to Article Thirteen, upon surrender in part of any
Registered Security for conversion into Common Stock or exchange
into other securities pursuant to its terms, or pursuant to the
terms of such Securities);
(3) whether such Securities are to be issuable as
Registered Securities, as Bearer Securities or alternatively as
Bearer Securities and Registered Securities, and whether the
Bearer Securities are to be issuable with Coupons, without
Coupons or both, and any restrictions applicable to the offer,
sale or delivery of the Bearer Securities and the terms, if any,
upon which Bearer Securities may be exchanged for Registered
Securities and vice versa;
(4) if any of such Securities are to be issuable in global
form, when any of such Securities are to be issuable in global
form and (i) whether beneficial owners of interests in any such
global Security may exchange such interest for Securities of the
same series and of like tenor and of any authorized form and
denomination, and the circumstances under which any such
exchanges may occur, if other than in the manner specified in
Section 305, and (ii) the name of the Depository or the U.S.
Depository, as the case may be, with respect to any global
Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such
Bearer Security or global Security shall be dated (if other than
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the date of original issuance of the first of such Securities to
be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a
temporary Bearer Security in global form payable in respect of an
Interest Payment Date therefor prior to the exchange, if any, of
such temporary Bearer Security for definitive Securities shall be
paid to any clearing organization with respect to the portion of
such temporary Bearer Security held for its account and, in such
event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a
clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date;
(7) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the
principal and premium, if any, of such Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such
rate or rates are to be determined, the date or dates, if any,
from which such interest shall accrue or the method or methods,
if any, by which such date or dates are to be determined, the
Interest Payment Dates, if any, on which such interest shall be
payable and the Regular Record Date, if any, for the interest
payable on any Interest Payment Date, whether and under what
circumstances Additional Amounts on such Securities or any of
them shall be payable, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day
months;
(9) if in addition to or other than the City of Grand
Rapids, Michigan, the place or places where the principal of, any
premium and interest on or any Additional Amounts with respect to
such any Securities of the series shall be payable, any of such
Securities that are Registered Securities may be surrendered for
registration of transfer or exchange, any of such Securities may
be surrendered for conversion or exchange and notices or demands
to or upon the Company in respect of such Securities and this
Indenture may be served;
(10) whether any of such Securities may be redeemable at the
option of the Company and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and
the other terms and conditions upon which such Securities may be
redeemed, in whole or in part, at the option of the Company;
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(11) whether the Company is obligated to redeem or purchase
any of such Securities pursuant to any sinking fund or analogous
provisions at the option of any Holder thereof and, if so, the
date or dates on which, the period or periods within which, the
price or prices at which and the other terms and conditions upon
which such Securities shall be redeemed or purchased, in whole or
in part, pursuant to such obligation, and any provisions for the
remarketing of such Securities so redeemed or purchased;
(12) the denominations in which any of such Securities that
are Registered Securities shall be issuable if other than
denominations of $1,000 and any integral multiple thereof, and
the denominations in which any of such Securities that are Bearer
Securities shall be issuable if other than the denomination of
$5,000;
(13) if other than the principal amount thereof, the portion
of the principal amount of any of such Securities that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the method by which such portion is to
be determined;
(14) if other than Dollars, the Currency in which payment of
the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities shall be payable;
(15) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to
be payable, at the election of the Company or a Holder thereof or
otherwise, in a Currency other than that in which such Securities
are stated to be payable, the period or periods within which, and
the other terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange rate
between the Currency in which such Securities are denominated or
stated to be payable and the Currency in which such Securities or
any of them are to be so paid pursuant to such election;
(16) whether the amount of payments of principal of, any
premium or interest on or any Additional Amounts with respect to
such Securities may be determined with reference to an index,
formula or other method (which index, formula or method or
methods may be based, without limitation, on one or more
Currencies, commodities, equity indices or other indices), and,
if so, the terms and conditions upon which and the manner in
which such amounts shall be determined and paid or payable;
(17) whether the Securities of the series will be
convertible into shares of Common Stock, Preferred Stock (which
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Preferred Stock may be represented by Depository Shares), other
debt securities or warrants for Common Stock, Preferred Stock or
indebtedness or other securities of any kind and, if so, the
terms and conditions upon which such Convertible Securities will
be so convertible or exchangeable, including the initial
conversion or exchange price or rate, the conversion or exchange
period and any other provision in addition to or in lieu of those
described herein, and any deletions from or modifications or
additions to this Indenture to permit or to facilitate the
issuance of such Convertible Securities or the administration
thereof;
(18) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to
any of such Securities, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants
set forth herein;
(19) whether any of such Securities of a series shall be
issuable as Original Issue Discount Securities;
(20) whether any of such Securities are to be issuable upon
the exercise of warrants and, if so, the time, manner and place
for such Securities to be authenticated and delivered;
(21) if any of such Securities are to be issuable in global
form and definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain
certificates or other documents or satisfaction of other
conditions, then the form and terms of such certificates,
documents or conditions;
(22) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to
such Securities; and
(23) any other terms of such Securities which the Company
may establish in accordance with Section 901.
All Securities of any one series and all Coupons, if any,
appertaining to Bearer Securities of such series shall be substantially
identical except as to Currency of payments due thereunder, denomination
and the rate or rates of interest (or method of determining any such rate),
if any, and Maturity, the date from which interest, if any, shall accrue
and except as may otherwise be provided by the Company in or pursuant to
the Board Resolution and set forth in the Officers' Certificate or in any
indenture or indentures supplemental hereto pertaining to such series of
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Securities. Securities of any particular series may be issued at various
times and with different dates on which the principal or any installment of
principal is payable, with different rates of interest, if any, or
different methods by which rates of interest may be determined, with
different dates on which such interest may be payable and with different
Redemption Dates or Repayment Dates and may be denominated in different
currencies or payable in different currencies.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of
the Officers' Certificate setting forth the terms of such series.
Section 302. CURRENCY; DENOMINATIONS.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise
provided in or pursuant to this Indenture, Registered Securities
denominated in Dollars shall be issuable in registered form without Coupons
in denominations of $1,000 and any integral multiple thereof, and the
Bearer Securities denominated in Dollars shall be issuable in denominations
of $5,000. Securities not denominated in Dollars shall be issuable in such
denominations as are established with respect to such Securities in or
pursuant to this Indenture. If Securities are issued in any Currency other
than Dollars, the Company shall deliver to the Trustee an Officers'
Certificate setting forth the Dollar equivalent of such issuance.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Securities shall be executed on behalf of the Company by its
Chairman of the Board, one of its Vice Chairmen, its President, its
Treasurer or one of its Vice Presidents and attested by its Secretary or
one of its Assistant Secretaries or by its Treasurer or one of its
Assistant Treasurers. Coupons shall be executed on behalf of the Company by
its Chairman of the Board, its President, any one of its Vice Presidents,
the Treasurer or any Assistant Treasurer of the Company. The signature of
any of these officers on the Securities or any Coupons appertaining thereto
may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the
manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or did not hold such
offices at the date of such Securities.
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At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series, together with any Coupons appertaining thereto, executed by the
Company, to the Trustee for authentication and, provided that the Board
Resolution and Officers' Certificate or supplemental indenture or
indentures with respect to such Securities referred to in Section 301 and a
Company Order for the authentication and delivery of such Securities have
been delivered to the Trustee, the Trustee in accordance with the Company
Order and subject to the provisions hereof and of such Securities shall
authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities and any Coupons appertaining
thereto, the Trustee shall be entitled to receive, and (subject to Sections
315(a) through 315(d) of the Trust Indenture Act) shall be fully protected
in relying upon,
(1) an Opinion of Counsel stating to the effect:
(A) that the form or forms and terms of such
Securities and Coupons, if any, have been established in
conformity with the provisions of this Indenture;
(B) that all conditions precedent to the
authentication and delivery of such Securities and Coupons,
if any, appertaining thereto have been complied with and
that such Securities and Coupons, when completed by
appropriate insertions and executed and delivered by the
Company to the Trustee for authentication pursuant to this
Indenture, and authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will
constitute legally valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms, subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other
similar laws affecting the enforcement of creditors' rights
generally, and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding
in equity or at law) and will entitle the Holders thereof to
the benefits of this Indenture; such Opinion of Counsel need
express no opinion as to the availability of equitable
remedies;
(C) that all laws and requirements in respect of the
execution and delivery by the Company of such Securities and
Coupons, if any, have been complied with; and
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(D) as to such other matters as the Trustee may
reasonably request; and
(2) an Officers' Certificate stating that, to the best
knowledge of the Persons executing such certificate, no event
which is, or after notice or lapse of time would become, an Event
of Default with respect to any of the Securities shall have
occurred and be continuing.
If all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel and an
Officers' Certificate at the time of issuance of each Security, but such
opinion and certificate, with appropriate modifications, shall be delivered
at or before the time of issuance of the first Security of such series.
After any such first delivery, any separate request by the Company that the
Trustee authenticate Securities of such series for original issue will be
deemed to be a certification by the Company that all conditions precedent
provided for in this Indenture relating to authentication and delivery of
such Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise
in a manner that is not reasonably acceptable to the Trustee or if the
Trustee, being advised by counsel, reasonably determines that such action
may not lawfully be taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any temporary Bearer Security in
global form shall be dated as of the date specified in or pursuant to this
Indenture.
No Security or Coupon appertaining thereto shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Security a certificate of authentication
substantially in the form provided for in Section 202 or 610 executed by or
on behalf of the Trustee or by the Authenticating Agent by the manual
signature of one of its authorized officers or by Authenticating Agent.
Such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306 or 307, the Trustee shall
not authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and canceled.
Notwithstanding the foregoing, if any Security or portion thereof shall
have been duly authenticated and delivered hereunder but never issued and
sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 309 together with a written
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statement (which statement need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security or portion
thereof has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee
shall authenticate and deliver, in the manner provided in Section 303,
temporary Securities in lieu thereof which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in
lieu of which they are issued, in registered form or, if authorized in or
pursuant to this Indenture, in bearer form with one or more Coupons or
without Coupons and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company executing
such Securities may determine, as conclusively evidenced by their execution
of such Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form that
shall be exchanged in accordance with the provisions thereof, if temporary
Securities are issued, the Company shall cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive
Securities of the same series and containing terms and provisions that are
identical to those of any temporary Securities, such temporary Securities
shall be exchangeable for such definitive Securities upon surrender of such
temporary Securities at an Office or Agency for such Securities, without
charge to any Holder thereof. Upon surrender for cancellation of any one
or more temporary Securities (accompanied by any unmatured Coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations of the same series and
containing identical terms and provisions; PROVIDED, HOWEVER, that no
definitive Bearer Security, except as provided in or pursuant to this
Indenture, shall be delivered in exchange for a temporary Registered
Security; and PROVIDED, FURTHER, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in compliance
with the conditions set forth in or pursuant to this Indenture. Unless
otherwise provided in or pursuant to this Indenture with respect to a
temporary global Security, until so exchanged the temporary Securities of
any series shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of such series.
Section 305. REGISTRATION, TRANSFER AND EXCHANGE.
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<PAGE> With respect to the Registered Securities of each series, if
any, the Company shall cause to be kept a register (each such register being
herein sometimes referred to as the "Security Register") for such series at
the Office or Agency of the Company in the City of Grand Rapids, Michigan,
or at such other Office or Agency as may be maintained for such purpose, in
which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of the Registered Securities of
such series and of transfers of the Registered Securities of such series.
In the event that the Trustee shall not be the Security Registrar, it shall
have the right to examine the Security Register at all reasonable times.
The Company is hereby initially appointed as Security Registrar for each
series of Securities. The Company may appoint any "Co-Security" Registrar,
as may be appropriate, to keep the Security Register. In the event that
the Trustee is not the Security Registrar with respect to a series of
Securities, it shall have the right to examine the Security Register for
such series at all reasonable times.
Upon surrender for registration of transfer of any Registered
Security of any series at any Office or Agency for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Registered
Securities of the same series denominated as authorized in or pursuant to
this Indenture, of a like aggregate principal amount bearing a number not
contemporaneously outstanding and containing identical terms and
provisions.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series
containing identical terms and provisions, in any authorized denominations,
and of a like aggregate principal amount, upon surrender of the Securities
to be exchanged at any Office or Agency for such series. Whenever any
Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, or shall cause the
Authenticating Agent to authenticate and deliver, the Registered Securities
that the Holder making the exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of
such series may be exchanged for Registered Securities of such series
containing identical terms, denominated as authorized in or pursuant to
this Indenture and in the same aggregate principal amount, upon surrender
of the Bearer Securities to be exchanged at any Office or Agency for such
series, with all unmatured Coupons and all matured Coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured Coupon or Coupons or matured Coupon or Coupons
in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee
in an amount equal to the face amount of such missing Coupon or Coupons, or
the surrender of such missing Coupon or Coupons may be waived by the
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Company and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security shall surrender
to any Paying Agent any such missing Coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; PROVIDED, HOWEVER, that, except as otherwise
provided in Section 1002, interest represented by Coupons shall be payable
only upon presentation and surrender of those Coupons at an Office or
Agency for such series located outside the United States. Notwithstanding
the foregoing, in case a Bearer Security of any series is surrendered at
any such Office or Agency for such series in exchange for a Registered
Security of such series and like tenor after the close of business at such
Office or Agency on (i) any Regular Record Date and before the opening of
business at such Office or Agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such
Office or Agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the Coupon relating to
such Interest Payment Date or proposed date of payment, as the case may be
(or, if such Coupon is so surrendered with such Bearer Security, such
Coupon shall be returned to the Person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be, shall
not be payable on such Interest Payment Date or proposed date for payment,
as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but shall be payable only to the Holder
of such Coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are surrendered for exchange as
contemplated by the immediately preceding two paragraphs, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities
that the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a successor depository
is not appointed by the Company within 60 days of the date the Company is
so informed in writing, (ii) the Company executes and delivers to the
Trustee a Company Order to the effect that such global Security shall be so
exchangeable, or (iii) an Event of Default has occurred and is continuing
with respect to the Securities.
The Company may at any time and in its sole discretion determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or
Securities. In such event, the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will deliver, Securities of such
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series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such series in exchange for such Global Security or
Securities.
If the beneficial owners of interests in a global Security are
entitled to exchange such interests for definitive Securities, then without
unnecessary delay but in any event not later than the earliest date on
which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in such form and denominations as are
required by or pursuant to this Indenture, and of the same series,
containing identical terms and in aggregate principal amount equal to the
principal amount of, such global Security, executed by the Company. On or
after the earliest date on which such interests may be so exchanged, such
global Security shall be surrendered from time to time by the U.S.
Depository or such other Depository as shall be specified in the Company
Order with respect thereto, and in accordance with instructions given to
the Trustee and the U.S. Depository or such other Depository, as the case
may be (which instructions shall be in writing but need not be contained in
or accompanied by an Officers' Certificate or be accompanied by an Opinion
of Counsel), as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities as described
above without charge. The Trustee shall authenticate and make available
for delivery, in exchange for each portion of such surrendered global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such global Security to be exchanged, that (unless such Securities are not
issuable both as Bearer Securities and as Registered Securities, in which
case the definitive Securities exchanged for the global Security shall be
issuable only in the form in which the Securities are issuable, as provided
in or pursuant to this Indenture) shall be in the form of Bearer Securities
or Registered Securities, or any combination thereof, as shall be specified
by the beneficial owner thereof but subject to the satisfaction of any
certification or other requirements to the issuance of Bearer Securities;
PROVIDED, HOWEVER, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of
Securities of the same series and containing identical terms to be redeemed
and ending on the relevant Redemption Date; and PROVIDED, FURTHER, that
(unless otherwise provided in or pursuant to this Indenture) no Bearer
Security delivered in exchange for a portion of a global Security shall be
mailed or otherwise delivered to any location in the United States.
Promptly following any such exchange in part, such global Security shall be
returned by the Trustee to such Depository or the U.S. Depository, as the
case may be, or such other Depository or U.S. Depository referred to above
in accordance with the instructions of the Company referred to above. If a
Registered Security is issued in exchange for any portion of a global
Security after the close of business at the Office or Agency for such
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Security where such exchange occurs on or after (i) any Regular Record Date
for such Security and before the opening of business at such Office or
Agency on the next Interest Payment Date, or (ii) any Special Record Date
for such Security and before the opening of business at such Office or
Agency on the related proposed date for payment of interest or Defaulted
Interest, as the case may be, interest shall not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but shall be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such global Security
shall be payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company
evidencing the same debt and entitling the Holders thereof to the same
benefits under this Indenture as the Securities surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so
required by the Company or the Security Registrar for such Security) be
duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar for such
Security duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer
or exchange, or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 905
or 1107 not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture,
the Company shall not be required (i) to issue, register the transfer of or
exchange any Securities during a period beginning at the opening of
business 15 days before the date notice is given of the redemption of
Securities of the same series under Section 1103 and ending at the close of
business on the day of such selection, or (ii) to register the transfer of
or exchange any Registered Security so selected for redemption in whole or
in part, except in the case of any Security to be redeemed in part, the
portion thereof not to be redeemed, or (iii) to exchange any Bearer
Security so selected for redemption except, to the extent provided with
respect to such Bearer Security, that such Bearer Security may be exchanged
for a Registered Security of like tenor and the same series, provided that
such Registered Security shall be immediately surrendered for redemption
with written instruction for payment consistent with the provisions of this
Indenture, or (iv) to issue, register the transfer of or exchange any
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Security which, in accordance with its terms, has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions
of this Section 306, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same
series containing identical terms and of like principal amount and bearing
a number not contemporaneously outstanding, with Coupons appertaining
thereto corresponding to the Coupons, if any, appertaining to the
surrendered Security.
If there be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or Coupon, and (ii) such security or indemnity as may be required
by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Security or Coupon has been acquired by a bona fide purchaser, the Company
shall execute and, upon the Company's request, the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Security or in exchange for the Security to which
a destroyed, lost or stolen Coupon appertains with all appurtenant Coupons
not destroyed, lost or stolen, a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons,
if any, appertaining to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in
case any mutilated, destroyed, lost or stolen Security or Coupon has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security or Coupon; PROVIDED,
HOWEVER, that payment of principal of, any premium or interest on or any
Additional Amounts with respect to any Bearer Securities shall, except as
otherwise provided in Section 1002, be payable only at an Office or Agency
for such Securities located outside the United States and, unless otherwise
provided in or pursuant to this Indenture, any interest on Bearer
Securities and any Additional Amounts with respect to such interest shall
be payable only upon presentation and surrender of the Coupons appertaining
thereto.
Upon the issuance of any new Security under this Section 306, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
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other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Company, whether
or not the destroyed, lost or stolen Security and Coupons appertaining
thereto or the destroyed, lost or stolen Coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of
such series and any Coupons, if any, duly issued hereunder.
The provisions of this Section 306, as amended or supplemented
pursuant to this Indenture with respect to particular Securities or
generally, shall be exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or Coupons.
Section 307. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL
AMOUNTS; RIGHTS TO INTEREST AND CERTAIN ADDITIONAL
AMOUNTS PRESERVED.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered
Security that shall be payable, and are punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name
such Security (or one or more Predecessor Securities) is registered as of
the close of business on the Regular Record Date for such interest. Unless
otherwise provided in or pursuant to this Indenture, in case a Bearer
Security is surrendered in exchange for a Registered Security after the
close of business at an Office or Agency for such Security on any Regular
Record Date therefor and before the opening of business at such Office or
Agency on the next succeeding Interest Payment Date therefor, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date and interest shall not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange for such
Bearer Security, but shall be payable only to the Holder of such Coupon
when due in accordance with the provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered
Security that shall be payable, but shall not be punctually paid or duly
provided for, on any Interest Payment Date for such Registered Security
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder thereof on the relevant Regular Record Date by virtue of having
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been such Holder; and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Person in whose name such Registered Security (or
a Predecessor Security thereof) shall be registered at the close
of business on a Special Record Date for the payment of such
Defaulted Interest, that shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on such Registered
Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of
Money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such Money when so deposited to be
held in trust for the benefit of the Person entitled to such
Defaulted Interest as in this Clause provided. Thereupon, the
Company shall fix a Special Record Date for the payment of such
Defaulted Interest that shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Company shall promptly
notify the Trustee in writing of such Special Record Date and the
Trustee, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class
postage prepaid, to the Holder of such Registered Security (or a
Predecessor Security thereof) at his address as it appears in the
Security Register not less than 10 days prior to such Special
Record Date. The Trustee may, in its discretion, in the name and
at the expense of the Company cause a similar notice to be
published at least once in an Authorized Newspaper of general
circulation in the Borough of Manhattan, The City of New York,
but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Person in whose name such
Registered Security (or a Predecessor Security thereof) shall be
registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following Clause
(2). In case a Bearer Security is surrendered at the Office or
Agency for such Security in exchange for a Registered Security
after the close of business at such Office or Agency on any
Special Record Date and before the opening of business at such
Office or Agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered
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without the Coupon relating to such Defaulted Interest and
Defaulted Interest shall not be payable on such proposed date of
payment in respect of the Registered Security issued in exchange
for such Bearer Security, but shall be payable only to the Holder
of such Coupon when due in accordance with the provisions of this
Indenture.
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Security may be listed,
and upon such notice as may be required by such exchange, if,
after written notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such payment shall be
deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Registered Securities
that bear interest may be paid by mailing a check to the address of the
person entitled thereto as such address shall appear in the Security
Register or by transfer to an account maintained by the payee with a bank
located in the United States, PROVIDED, HOWEVER, that the Trustee shall
have received written wire instructions by no later than the Regular Record
Date for the relevant payment date.
Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
In the case of any Convertible Security that is converted after
any Regular Record Date and on or prior to the next succeeding Interest
Payment Date (other than any Convertible Security whose Maturity is prior
to such Interest Payment Date), interest whose Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose
name such Convertible Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the
case of any Convertible Security that is converted, interest whose Stated
Maturity is after the date of conversion of such Security shall not be
payable.
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Section 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Registered
Security is registered in the Security Register as the owner of such
Registered Security for the purpose of receiving payment of principal of,
any premium and (subject to Sections 305 and 307) interest on and any
Additional Amounts with respect to such Registered Security and for all
other purposes whatsoever, whether or not any payment with respect to such
Registered Security shall be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to
the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security or the bearer of any
Coupon as the absolute owner of such Security or Coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not any payment with respect to such Security or
Coupon shall be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security held
on its behalf by a Depository shall have any rights under this Indenture
with respect to such global Security, and such Depository may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
owner of such global Security for all purposes whatsoever. None of the
Company, the Trustee, any Paying Agent or the Security Registrar will have
any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a global
Security or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Section 309. CANCELLATION.
All Securities and Coupons surrendered for payment, redemption,
repayment, conversion, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee, and any such Securities and
Coupons, as well as Securities and Coupons surrendered directly to the
Trustee for any such purpose, shall be canceled promptly by the Trustee.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder that the
Company may have acquired in any manner whatsoever, and all Securities so
delivered shall be canceled promptly by the Trustee. No Securities shall
be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by or pursuant to
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this Indenture. All canceled Securities and Coupons held by the Trustee
shall be destroyed by the Trustee and the Trustee shall deliver to the
Company a certificate of destruction.
Section 310. COMPUTATION OF INTEREST.
Except as otherwise provided in or pursuant to this Indenture or
any Security, interest on the Securities shall be computed on the basis of
a 360-day year of twelve 30-day months.
Section 311. FORMS OF CERTIFICATION.
Unless otherwise provided pursuant to Section 301:
(1) Whenever any provision of this Indenture or the forms
of Securities contemplate that certification be given by a Person
entitled to receive a Bearer Security, such certification shall
be provided substantially in the form of Exhibit A hereto, with
only such changes as shall be approved by the Company.
(2) Whenever any provision of this Indenture or the forms
of Securities contemplate that certification be given by
Euroclear and CEDEL S.A. in connection with the exchange of a
portion of a temporary Global Security, such certification shall
be provided substantially in the form of Exhibit B hereto, with
only such changes as shall be approved by the Company.
(3) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by Euroclear
and CEDEL S.A. in connection with payment of interest with
respect to a temporary Global Security prior to the related
Global Exchange Date, such certification shall be provided
substantially in the form of Exhibit C hereto, with only such
changes as shall be approved by the Company.
(4) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by a
beneficial owner of a portion of a temporary Global Security in
connection with payment of interest with respect to a temporary
Global Security prior to the related Global Exchange Date, such
certification shall be provided substantially in the form of
Exhibit D hereto, with only such changes as shall be approved by
the Company.
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Section 312. JUDGMENTS.
The Company may provide, pursuant to Section 301, for the
Securities of any series that, to the fullest extent possible under
applicable law and except as may otherwise be specified as contemplated in
Section 301, (a) the obligation, if any, of the Company to pay the
principal of (and premium, if any) and Interest of the Securities of any
series and any appurtenant coupons in a Foreign Currency, composite
currency or Dollars (the "Designated Currency") as may be specified
pursuant to Section 301 is of the essence and agrees that judgments in
respect of such Securities shall be given in the Designated Currency; (b)
the obligation of the Company to make payments in the Designated Currency
of the principal of (and premium, if any) and Interest on such Securities
and any appurtenant Coupons shall, notwithstanding any payment in any other
Currency (whether pursuant to a judgment or otherwise), be discharged only
to the extent of the amount in the Designated Currency that the Holder
receiving such payment may, in accordance with normal banking procedures,
purchase with the sum paid in such other Currency (after any premium and
cost of exchange) in the country of issue of the Designated Currency in the
case of Foreign Currency or Dollars or in the international banking
community in the case of a composite currency on the Business Day
immediately following the day on which such Holder receives such payment;
(c) if the amount in the Designated Currency that may be so purchased for
any reason falls short of the amount originally due, the Company shall pay
such additional amounts as may be necessary to compensate for such
shortfall; and (d) any obligation of the Company not discharged by such
payment shall be due as a separate and independent obligation and, until
discharged as provided herein, shall continue in full force and effect.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. SATISFACTION AND DISCHARGE.
Upon the direction of the Company by a Company Order, this
Indenture shall cease to be of further effect with respect to any series of
Securities specified in such Company Order and any Coupons appertaining
thereto, and the Trustee, on receipt of a Company Order, at the expense of
the Company, shall execute a written instrument, satisfactory in form and
substance to the Company and the Trustee, acknowledging satisfaction and
discharge of this Indenture as to such series, when
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(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all Coupons appertaining
thereto (other than (i) Coupons appertaining to Bearer
Securities of such series surrendered in exchange for
Registered Securities of such series and maturing after such
exchange whose surrender is not required or has been waived
as provided in Section 305, (ii) Securities and Coupons of
such series that have been destroyed, lost or stolen and
that have been replaced or paid as provided in Section 306,
(iii) Coupons appertaining to Securities of such series
called for redemption and maturing after the relevant
Redemption Date whose surrender has been waived as provided
in Section 1106, and (iv) Securities and Coupons of such
series for whose payment Money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose, Money in an amount
sufficient to pay and discharge the entire indebtedness on
such Securities and any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation,
including the principal of, any premium and interest on, and
any Additional Amounts with respect to such Securities and
any Coupons appertaining thereto, to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Maturity thereof, as the case may be;
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(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company with respect to the
Outstanding Securities of such series and any Coupons
appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series
have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested in writing
to do so with respect to Securities of such series as to which it is
Trustee and if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to any series of Securities, the obligations of the Company to
the Trustee under Section 605 and, if Money shall have been deposited with
the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Company and the Trustee under Sections 305, 306, 402,
1002 and 1003, with respect to payment of Additional Amounts, if any, with
respect to such Securities as contemplated by Section 1004 (but only to the
extent that the Additional Amounts payable with respect to such Securities
exceed the amount deposited in respect of such Additional Amounts pursuant
to Section 401(1)(B)), and with respect to any rights to convert or
exchange such Securities into Common Stock or other securities shall
survive.
Section 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the penultimate paragraph of Section
1003, all Money and Government Obligations deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the Coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium,
interest and Additional Amounts for whose payment such Money has or
Government Obligations have been deposited with or received by the Trustee;
but such Money and Government Obligations need not be segregated from other
funds except to the extent required by law. All Money or Government
Obligations deposited with the Trustee pursuant to Section 401 (and held by
the Trustee or any Paying Agent) for the payment of Securities subsequently
converted shall be returned to the Company upon receipt by the Trustee of a
Company Request.
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Section 403. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money
in accordance with the above Section by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to
Section 401 until such time as the Trustee or any Paying Agent is permitted
to apply all such money in accordance with Section 402.
ARTICLE FIVE
REMEDIES
Section 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless such event is inapplicable to
a particular series or it is specifically deleted or modified in or
pursuant to the supplemental indenture, Board Resolution or Officers'
Certificate establishing the terms of such Securities pursuant to this
Indenture:
(1) the entry by a court having competent jurisdiction of:
(A) a decree or order for relief in respect of the
Company or any Principal Constituent Bank in an involuntary
proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law and such decree or order
shall remain unstayed and in effect for a period of 60
consecutive days; or
(B) a decree or order adjudging the Company or any
Principal Constituent Bank to be insolvent, or approving a
petition seeking reorganization, arrangement, adjustment or
composition of the Company or any Principal Constituent Bank
and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(C) a final and non-appealable order appointing a
custodian, receiver, liquidator, assignee, trustee or other
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similar official of the Company or any Principal Constituent
Bank or of any substantial part of the property of the
Company or any Principal Constituent Bank, as the case may
be, or ordering the winding up or liquidation of the affairs
of the Company or any Principal Constituent Bank; or
(2) the commencement by the Company or any Principal
Constituent Bank of a voluntary proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or of
a voluntary proceeding seeking to be adjudicated insolvent or the
consent by the Company or any Principal Constituent Bank to the
entry of a decree or order for relief in an involuntary
proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
insolvency proceedings against it, or the filing by the Company
or any Principal Constituent Bank of a petition or answer or
consent seeking reorganization or relief under any applicable
law, or the consent by the Company or any Principal Constituent
Bank to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee or similar official of the Company or any Principal
Constituent Bank or any substantial part of the property of the
Company or any Principal Constituent Bank or the making by the
Company or any Principal Constituent Bank of an assignment for
the benefit of creditors, or the taking of corporate action by
the Company or any Principal Constituent Bank in furtherance of
any such action; or
(3) any other Event of Default applicable to the Securities
of such series pursuant to this Indenture or any supplemental
indenture.
Section 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default with respect to Securities of any series
at the time Outstanding occurs and is continuing, then the Trustee or the
Holders of not less than 25 percent in principal amount of the Outstanding
Securities of such series may declare the principal of all the Securities
of such series, or such lesser amount as may be provided for in the
Securities of such series, to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by the Holders), and
upon any such declaration such principal or such lesser amount shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree
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for payment of the Money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series,
by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum of Money sufficient to pay
(A) all overdue installments of any interest on and
Additional Amounts with respect to all Securities of such
series and any Coupon appertaining thereto,
(B) the principal of and any premium on any Securities
of such series that have become due otherwise than by such
declaration of acceleration and interest thereon and any
Additional Amounts with respect thereto at the rate or rates
borne by or provided for in such Securities,
(C) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue
installments of any interest and Additional Amounts at the
rate or rates borne by or provided for in such Securities,
and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of
such series, other than the non-payment of the principal of
securities of that series that have become due solely by such
declaration of acceleration, shall have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on or any Additional Amounts with respect to any
Security or any Coupon appertaining thereto when such interest or
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Additional Amounts shall have become due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of or
any premium on any Security at its Maturity,
the Company shall, upon written demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of such Securities and any Coupons
appertaining thereto, the whole amount of Money then due and payable with
respect to such Securities and any Coupons appertaining thereto, with
interest upon the overdue principal, any premium and, to the extent that
payment of such interest shall be legally enforceable, upon any overdue
installments of interest and Additional Amounts at the rate or rates borne
by or provided for in such Securities, and, in addition thereto, such
further amount of Money as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay the Money it is required to pay the
Trustee pursuant to the preceding paragraph forthwith upon the demand of
the Trustee, the Trustee, in its own name, and as trustee of an express
trust, may institute a judicial proceeding for the collection of the Money
so due and unpaid, and may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor
upon such Securities and any Coupons appertaining thereto and collect the
Moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or any other obligor upon such Securities
and any Coupons appertaining thereto, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may, in its discretion, proceed to
protect and enforce its rights and the rights of the Holders of Securities
of such series and any Coupons appertaining thereto by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or such Securities or in aid of the
exercise of any power granted herein or therein, or to enforce any other
proper remedy.
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein
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expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of any
overdue principal, premium, interest or Additional Amounts) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such
series, of the principal and any premium, interest and Additional
Amounts owing and unpaid in respect of such Securities and any
Coupons appertaining thereto and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders of such
Securities or any Coupons allowed in such judicial proceeding,
and
(2) to collect and receive any Monies or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder of Securities or any Coupons to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders of Securities or any Coupons, to pay
to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
and any other amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of a
Security or any Coupon any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or Coupons or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of the claim
of any Holder of a Security or any Coupon in any such proceeding.
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS.
All rights of action and claims under this Indenture or any of
the Securities or Coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or Coupons or the
production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery or judgment, after provision
for the payment of the reasonable compensation, expenses, disbursements and
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advances of the Trustee, its agents and counsel, shall be for the ratable
benefit of each and every Holder of a Security or Coupon in respect of
which such judgment has been recovered.
Section 506. APPLICATION OF MONEY COLLECTED.
Subject to Article Seventeen, any Money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
Money on account of principal, or any premium, interest or Additional
Amounts, upon presentation of the Securities or Coupons, or both, as the
case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and
any predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities and any Coupons for principal and any
premium, interest and Additional Amounts in respect of which or
for the benefit of which such Money has been collected, ratably,
without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and Coupons
for principal and any premium, interest and Additional Amounts,
respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
Section 507. LIMITATIONS ON SUITS.
No Holder of any Security of any series or any Coupons
appertaining thereto shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default or other default
hereunder or under the related Security with respect to the
Securities of such series;
(2) the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default or default in its own name as
Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of such series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture or any Security to affect, disturb or prejudice
the rights of any other such Holders or Holders of Securities of any other
series, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL AND ANY PREMIUM, INTEREST AND ADDITIONAL
AMOUNTS.
Notwithstanding any other provision in this Indenture, the Holder
of any Security or Coupon shall have the right, which right is absolute and
unconditional, to receive payment of the principal of, any premium and
(subject to Sections 305 and 307) interest on, and any Additional Amounts
with respect to such Security or payment of such Coupon, as the case may
be, on the respective Stated Maturity or Stated Maturities therefor
specified in such Security or Coupon (or, in the case of redemption on the
Redemption Date or, in the case of repayment at the option of such Holder
if provided in or pursuant to this Indenture on the date such repayment is
due), and the right to convert any Convertible Security in accordance with
Article Sixteen, and to institute suit for the enforcement of any such
payment and right to convert, and such rights shall not be impaired without
the consent of such Holder.
Section 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or a Coupon has
instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
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then and in every such case the Company, the Trustee and each such Holder
shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and each such Holder
shall continue as though no such proceeding had been instituted.
Section 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons in
the last paragraph of Section 306, no right or remedy herein conferred upon
or reserved to the Trustee or to each and every Holder of a Security or a
Coupon is intended to be exclusive of any other right or remedy, and every
right and remedy, to the extent permitted by law, shall be cumulative and
in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not, to
the extent permitted by law, prevent the concurrent assertion or employment
of any other appropriate right or remedy.
Section 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security or Coupon to exercise any right or remedy accruing upon any Event
of Default or other defaults hereunder or under the related Security shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to any Holder of a
Security or a Coupon may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by such Holder, as the case may
be.
Section 512. CONTROL BY HOLDERS OF SECURITIES.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series and any Coupons appertaining
thereto, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture or with the Securities of any
series,
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(2) the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction,
(3) such direction is not unduly prejudicial to the rights
of the other Holders of Securities of such series not joining in
such action, and
(4) such direction shall not, in the reasonable opinion of
the Trustee, expose the Trustee to personal liability.
Section 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series on behalf of the Holders of all
the Securities of such series and any Coupons appertaining thereto may
waive any past default hereunder with respect to such series and its
consequences, except a default not previously cured
(1) in the payment of the principal of, any premium or
interest on, or any Additional Amounts with respect to any
Security of such series or any Coupons appertaining thereto, or
(2) in the conversion of any Convertible Securities
pursuant to the terms thereof, or
(3) in respect of a covenant or provision hereof that under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants that (to the extent that it may lawfully do
so) it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force that may affect
the covenants or the performance of this Indenture; and the Company
expressly waives (to the extent that it may lawfully do so) all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
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Section 515. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Security or Coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; PROVIDED, HOWEVER, that
the provisions of this Section shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10 percent in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on or any Additional Amounts in respect of any Security
on or after the Stated Maturity or Stated Maturities expressed in such
Security or in the Coupons, if any, for such interest (or, in the case of
redemption, on or after the Redemption Date or, in the case of repayment,
on or after the Repayment Date) or for enforcement of its right to convert
Convertible Securities pursuant to the terms thereof.
ARTICLE SIX
THE TRUSTEE
Section 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(1) Except during the continuance of a Default with respect
to any series of Securities,
(A) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture with respect to Securities of such series, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee with respect to such series;
and
(B) in the absence of bad faith on its part, the
Trustee may conclusively rely with respect to such series,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificate
or opinions that by any provision hereof are specifically
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required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or
not they conform as to form to the requirements of the
Indenture.
(2) In case a Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this
Indenture with respect to such series, and use the same degree of
care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or
her own affairs.
(3) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that
(A) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(B) the Trustee shall not be liable for any error or
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(C) the Trustee shall not be liable with respect to
any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of the Holders
of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and
places of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to
Securities of such series; and
(D) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(4) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
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Section 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to Sections 315(a) through 315(d) of the Trust Indenture
Act:
(1) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon, other
evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed or presented
by the proper party or parties, and the Trustee need not
investigate any fact or matter stated in the document;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or a
Company Order (in each case, other than delivery of any Security,
together with any Coupons appertaining thereto, to the Trustee
for authentication and delivery pursuant to Section 303 that
shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence shall be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by or pursuant to this
Indenture at the request or direction of any of the Holders of
Securities of any series or any Coupons appertaining thereto
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
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request, direction, consent, order, bond, debenture, note,
coupon, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to
examine, during business hours and upon reasonable notice, the
books, records and premises of the Company, personally or by
agent or attorney, and if requested to do so by any of the
Holders, at the sole cost and expense of the Holders; and
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any willful misconduct or negligence on the part
of any agent or attorney appointed with due care by it hereunder.
Section 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken
as the statements of the Company and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or the Coupons, except that the Trustee
represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility
on Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. Neither the Trustee nor any
Authenticating Agent shall be (i) accountable for the use or application by
the Company of the Securities or the proceeds thereof, (ii) accountable for
any Money paid to the Company, or upon the Company's direction, if made
under and in accordance with any provision of this Indenture, and (iii),
responsible for the use or application of any Money received by any Paying
Agent who is not the Trustee.
Section 604. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities or
Coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
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Section 605. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any Money received by
it hereunder except as otherwise agreed in writing with the Company.
Section 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder
(which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to the
Trustee's willful misconduct, negligence or bad faith; and
(3) to indemnify the Trustee and each of its officers,
directors, attorneys-in-fact and agents for, and to hold each
such Person harmless against, any loss, claim, liability or
expense incurred without negligence or bad faith on such Person's
part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
costs and expenses of defending themselves against any claim or
liability, and of complying with any process served on any of
them in connection with the exercise or performance of any of
their powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities
of any series upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the payment of principal of, and
premium, if any, or interest on or any Additional Amounts with respect to
Securities or any Coupons appertaining thereto. Such obligations and lien
shall survive the satisfaction and discharge of this Indenture and any
rejection of this Indenture by any bankruptcy court.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default, the parties hereto and each Holder, by
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each such Holder's acceptance of any Security or Coupon, hereby agree that
the expenses and the compensation for services are intended to constitute
expenses of administration to the extent enforceable under any applicable
bankruptcy law.
Section 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY;
CONFLICTING INTEREST.
There shall at all times be a Trustee hereunder that is a
Corporation organized and doing business under the laws of the United
States of America, any state thereof, or the District of Columbia, eligible
under Section 310(a)(1) of the Trust Indenture Act to act as trustee under
an indenture qualified under the Trust Indenture Act and that has a
combined capital and surplus (computed in accordance with Section 310(a)(2)
of the Trust Indenture Act) of at least $50,000,000, subject to supervision
or examination by Federal or state authority, PROVIDED, however, that if
Section 310(a) of the Trust Indenture Act or the rules and regulations of
the Commission under the Trust Indenture Act, at any time permit a
corporation organized and doing business under the laws of any other
jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this Section shall be automatically deemed amended to permit
a corporation organized and doing business under the laws of any such
jurisdiction to serve as Trustee hereunder. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article. If the Trustee has or shall acquire
any conflicting interest, as defined in Section 310(b) of the Trust
Indenture Act, with respect to the Securities of any series, the Trustee
shall take such action as is required pursuant to said Section 310(b).
Section 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(1) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor
Trustee required by Section 609 shall not have been delivered to
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the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to such series.
(3) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and the Company.
(4) If at any time:
(A) the Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the
Trust Indenture Act with respect to Securities of any series
after written request therefor by the Company or any Holder
of a Security of such series who has been a bona fide Holder
of a Security of such series for at least six months, unless
the Trustee's duty to resign is stayed as provided in this
Section, or
(B) the Trustee shall cease to be eligible under
Section 607 and shall fail to resign after written request
therefor by the Company or any such Holder, or
(C) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a
Board Resolution, may remove the Trustee with respect to all
Securities or the Securities of such series, or (ii) subject to
Section 315(e) of the Trust Indenture Act, any Holder of a
Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all
Securities of such series and the appointment of a successor
Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or
more series, the Company, by or pursuant to a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with
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respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall comply with
the applicable requirements of Section 609. If, within one year
after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 609, become the
successor Trustee with respect to the Securities of such series
and to that extent supersede the retiring Trustee appointed by
the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the
Company or the Holders of Securities and accepted appointment in
the manner required by Section 609, any Holder of a Security who
has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the
Securities of such series.
(6) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect
to the Securities of any series by mailing written notice of such
event by first-class mail, postage prepaid, to the Holders of
Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of
such series are issued as Bearer Securities, by publishing notice
of such event once in an Authorized Newspaper in each Place of
Payment located outside the United States. Each notice shall
include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
Office.
Section 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(1) Upon the appointment hereunder of any successor Trustee
with respect to all Securities, such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company
and the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
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retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties
hereunder of the retiring Trustee; but, on the written request of
the Company or such successor Trustee, such retiring Trustee,
upon payment of its charges, shall execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and, subject to Section
1003, shall duly assign, transfer and deliver to such successor
Trustee all property and Money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided
for in Section 606.
(2) Upon the appointment hereunder of any successor Trustee
with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and such successor
Trustee shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such
appointment and that (1) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest
in, such successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees co-
trustees of the same trust, that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any notice
given to, or received by, or any act or failure to act on the
part of any other Trustee hereunder. Upon the execution and
delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the
extent provided therein. Such retiring Trustee shall have no
further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the
successor Trustee under this Indenture with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates other than as hereinafter
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expressly set forth, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of
the Company or such successor Trustee, such retiring Trustee,
upon payment of its charges with respect to the Securities of
that or those series to which the appointment of such successor
relates and subject to Section 1003, shall duly assign, transfer
and deliver to such successor Trustee, to the extent contemplated
by such supplemental indenture, the property and Money held by
such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates.
(3) Upon request of any Person appointed hereunder as a
successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (1) or (2) of this Section, as
the case may be.
(4) No Person shall accept its appointment hereunder as a
successor Trustee unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this
Article.
Section 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any Corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any Corporation succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such Corporation shall otherwise be qualified and
eligible under this Article Six, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated but not delivered by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
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Section 611. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint one or more Authenticating Agents
acceptable to the Company with respect to one or more series of Securities
that shall be authorized to act on behalf of the Trustee to authenticate
Securities of that or those series issued upon original issue, exchange,
registration of transfer, partial redemption or repayment, partial
conversion or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and,
except as provided in or pursuant to this Indenture, shall at all times be
a corporation that would be permitted by the Trust Indenture Act to act as
trustee under an indenture qualified under the Trust Indenture Act, be
authorized under applicable law and by its charter to act as an
Authenticating Agent, have a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$5,000,000 and be subject to supervision or explanation by Federal or State
authority. Notwithstanding the foregoing, an Authenticating Agent located
outside the United States may be appointed by the Trustee if previously
approved in writing by the Company and if such Authenticating Agent meets
the minimum capitalization requirements of this Section. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any Corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any Corporation succeeding to all
or substantially all of the corporate agency or corporate trust business of
an Authenticating Agent, shall be the successor of such Authenticating
Agent hereunder, PROVIDED such Corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving 30 days'
written notice thereof to the Trustee and the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent that shall be acceptable to the Company and
shall (i) mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Registered Securities, if any, of the
series with respect to which such Authenticating Agent shall serve, as
their names and addresses appear in the Security Register, and (ii) if
Securities of the series are issued as Bearer Securities, publish notice of
such appointment at least once in an Authorized Newspaper in the place
where such successor Authenticating Agent has its principal office if such
office is located outside the United States. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested
with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to
time reasonable compensation for its services under this Section. If the
Trustee makes such payments, it shall be entitled to be reimbursed for such
payments, subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable
to each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or
more series of Securities pursuant to this Section, the Securities of such
series may have endorsed thereon, in addition to or in lieu of the
Trustee's certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
Dated: [ ], As Trustee
By
As Authenticating Agent
By _________________________________
Authorized Signatory
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If all of the Securities of any series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested in
writing (which writing need not be accompanied by or contained in an
Officers' Certificate by the Company), shall appoint in accordance with
this Section an Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
Section 612. NOTICE OF DEFAULT.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture
Act, notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; PROVIDED, HOWEVER, that, except in
the case of a default in the payment of the principal of (or premium, if
any) or interest on, or any Additional Amounts with respect to, any
Security of such series or in the payment of any sinking fund installment
with respect to Securities of such series, the Trustee shall be protected
in withholding such notice if and so long as the board of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of Securities
and Coupons of such series. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than 15 days after each
Regular Record Date for each series of Securities, or upon such
other dates as are set forth in or pursuant to the Board
Resolution or indenture supplemental hereto authorizing such
series, a list, in each case in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as
of the applicable date, and
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(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is requested to be
furnished,
PROVIDED, HOWEVER, that so long as the Trustee is the Security Registrar no
such list shall be required to be furnished.
Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS.
The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company,
the Trustee, nor any agent of either of them shall be held accountable by
reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with Section 312 of
the Trust Indenture Act, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
312(b) of the Trust Indenture Act.
Section 703. REPORTS BY TRUSTEE.
(1) Within 60 days after ____________________ of each year
commencing with the first ____________________ following the
first issuance of Securities pursuant to Section 301, if required
by Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit, pursuant to Section 313(c) of the Trust Indenture Act,
a brief report dated as of such November 15 with respect to any
of the events specified in said Section 313(a) that may have
occurred since the later of the immediately preceding
____________________ and the date of this Indenture, but if no
such event has occurred within such period, no report need be
transmitted.
(2) The Trustee shall transmit the reports required by
Section 313(a) of the Trust Indenture Act at the times specified
therein.
(3) Reports pursuant to this Section shall be transmitted
in the manner and to the Persons required by Sections 313(c) and
313(d) of the Trust Indenture Act.
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Section 704. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust
Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) that the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and
the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such
supplementary and periodic information, documents and reports
that may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Company, as the case may be,
with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to time
by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Company with or into any
other Person or Persons (whether or not affiliated with the Company), or
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successive consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any conveyance,
transfer or lease of the property of the Company as an entirety or
substantially as an entirety to any other Person (whether or not affiliated
with the Company); PROVIDED, HOWEVER, that:
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties
and assets as an entirety or substantially as an entirety to any
Person, the entity formed by such consolidation or into which the
Company is merged or the Person that acquires by conveyance or
transfer the properties and assets of the Company as an entirety
or substantially as an entirety shall expressly assume, by an
indenture (or indentures, if at such time there is more than one
Trustee) supplemental hereto, executed by the successor Person
and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of, any
premium and interest on and any Additional Amounts with respect
to all the Securities and the performance of every other
obligation in this Indenture on the part of the Company to be
performed or observed and shall provide for conversion or
exchange rights in accordance with the terms of all Convertible
Securities;
(2) immediately after giving effect to such transaction, no
event which is, or after notice or lapse of time (or both) would
become, an Event of Default shall have occurred and be
continuing; and
(3) either the Company or the successor Person shall have
delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and any applicable supplemental
indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have
been complied with.
Section 802. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY.
Upon any consolidation or merger or any conveyance, transfer or
lease of the properties and assets of the Company as an entirety or
substantially as an entirety to any Person in accordance with Section 801,
the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; and thereafter,
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except in the case of a lease to another Person, the predecessor Person
shall be released from all obligations and covenants under this Indenture,
the Securities and the Coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders of Securities or Coupons, the
Company (when authorized by or pursuant to a Board Resolution) and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (as shall be
specified in such supplemental indenture or indentures) or to
surrender any right or power herein conferred upon the Company;
or
(3) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the
payment of principal of, any premium or interest on or any
Additional Amounts with respect to Securities, to permit
Registered Securities to be exchanged for Bearer Securities, to
permit Bearer Securities to be exchanged for Bearer Securities of
other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form, provided any such
action shall not adversely affect the interests of the Holders of
Securities of any series or any Coupons appertaining thereto in
any material respect; or
(4) to establish the form or terms of Securities of any
series and any Coupons appertaining thereto as permitted by
Sections 201 and 301; or
(5) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
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Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
609; or
(6) to cure any ambiguity or to correct or supplement any
provision herein that may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture that
shall not adversely affect the interests of the Holders of
Securities of any series then Outstanding or any Coupons
appertaining thereto in any material respect; or
(7) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as
herein set forth; or
(8) to add any additional Events of Default with respect to
all or any series of Securities (as shall be specified in such
supplemental indenture); or
(9) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Article Four, PROVIDED that any such action shall not adversely
affect the interests of any Holder of a Security of such series
and any Coupons appertaining thereto or any other Security or
Coupon in any material respect; or
(10) to secure the Securities; or
(11) to make any provisions with respect to the conversion
or exchange rights of Holders of Convertible Securities of any
series in addition to, or in lieu of, any provisions contained in
this Indenture; or
(12) to amend or supplement any provision contained herein
or in any supplemental indenture, PROVIDED that no such amendment
or supplement shall materially adversely affect the interests of
the Holders of any Securities then Outstanding; or
(13) to comply with any requirement of the Commission in
order to effect or maintain the qualification of this Indenture
under the Trust Indenture Act.
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Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders delivered
to the Company and the Trustee, the Company (when authorized by or pursuant
to a Board Resolution) and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of
Securities of such series and any related Coupons under this Indenture or
of the Securities of such series; PROVIDED, HOWEVER, that no such
supplemental indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall:
(1) change the Stated Maturity of the principal of, or any
premium or installment of interest on or any Additional Amounts
with respect to, any Security, or reduce the principal amount
thereof or the rate (or manner of calculation of such rate) of
interest thereon or any Additional Amounts with respect thereto,
or any premium payable upon the redemption thereof or otherwise,
or change the obligation of the Company to pay Additional Amounts
pursuant to Section 1004 (except as contemplated by Section
801(1) and permitted by Section 901(1)), or reduce the amount of
the principal of an Original Issue Discount Security or an
Indexed Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502
or the amount thereof provable in bankruptcy pursuant to Section
504, or change any redemption provisions or adversely affect the
right of repayment at the option of any Holder as contemplated by
Article Thirteen, or change the Place of Payment, Currency in
which the principal of, any premium or interest on or any
Additional Amounts with respect to any Security is payable, or
impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date or, in the
case of repayment at the option of the Holder, on or after the
date for repayment) or the rights of Holders of Convertible
Securities to effect conversion or exchange pursuant to the terms
thereof; or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
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Indenture, or reduce the requirements of Section 1504 for quorum
or voting; or
(3) modify any of the provisions of this Indenture relating
to the subordination of the Securities in a manner adverse to
Holders of Securities, or
(4) modify any of the provisions of this Section except to
increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected
thereby; or
(5) make any change that adversely affects the right to
convert or exchange any Convertible Security pursuant to the
terms thereof.
A supplemental indenture that changes or eliminates any covenant
or other provision of this Indenture that shall have been included
expressly and solely for the benefit of one or more particular series of
Securities, or that modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
As a condition to executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trust created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 315 of the Trust
Indenture Act) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
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supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of a Security theretofore or thereafter
authenticated and delivered hereunder and of any Coupon appertaining
thereto shall be bound thereby.
Section 905. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
Section 906. EFFECT ON SENIOR INDEBTEDNESS.
No supplemental indenture shall directly or indirectly modify or
eliminate the provisions of Article Seventeen in any manner that might
terminate or impair the subordination of the Securities to Senior
Indebtedness without the prior written consent of the holders of the Senior
Indebtedness.
Section 907. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
Nine shall conform to the requirements of the Trust Indenture Act as then
in effect.
ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL AND ANY PREMIUM, INTEREST AND
ADDITIONAL AMOUNTS.
The Company covenants and agrees for the benefit of the Holders
of the Securities of each series that it will duly and punctually pay the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities of such series in accordance with the terms
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thereof, any Coupons appertaining thereto and this Indenture. Any interest
due on any Bearer Security on or before the Maturity thereof, and any
Additional Amounts payable with respect to such interest, shall be payable
only upon presentation and surrender of the Coupons appertaining thereto
for such interest as they severally mature.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for any
series of Securities an Office or Agency where Securities of such series
(but not Bearer Securities, except as otherwise provided below, unless such
Place of Payment is located outside the United States) may be presented or
surrendered for payment, where Securities of such series may be surrendered
for registration of transfer or exchange or conversion and where notices
and demands to or upon the Company in respect of the Securities of such
series relating thereto and this Indenture may be served. If Securities of
a series are issuable as Bearer Securities, the Company shall maintain,
subject to any laws or regulations applicable thereto, an Office or Agency
in a Place of Payment for such series that is located outside the United
States where Securities of such series and any Coupons appertaining thereto
may be presented and surrendered for payment; PROVIDED, HOWEVER, that if
the Securities of such series are listed on The Stock Exchange of the
United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company shall maintain a Paying Agent
in London, Luxembourg or any other required city located outside the United
States, as the case may be, when and so long as the Securities of such
series are listed on such exchange. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of
such Office or Agency. If at any time the Company shall fail to maintain
any such required Office or Agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of such series and any Coupons appertaining
thereto may be presented and surrendered for payment at the place specified
for the purpose with respect to such Securities as provided in or pursuant
to this Indenture and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect
to Bearer Securities shall be made at any Office or Agency in the United
States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
PROVIDED, HOWEVER, if amounts owing with respect to any Bearer Securities
shall be payable in Dollars, payment of principal of, any premium or
interest on and any Additional Amounts with respect to any such Security
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may be made at the Office or Agency of the Company in the City of Grand
Rapids, Michigan, or any other Office or Agency designated by the Company
in the City of Grand Rapids, Michigan, if (but only if) payment of the full
amount of such principal, premium, interest or Additional Amounts at all
offices outside the United States maintained for such purpose by the
Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more
other Offices or Agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; PROVIDED, HOWEVER, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an Office or Agency in each Place of Payment for Securities of any
series for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other Office or Agency. Unless otherwise provided in
or pursuant to this Indenture, the Company hereby designates as the Place
of Payment for each series (other than Bearer Securities) the City of Grand
Rapids, Michigan, and initially appoints the Office or Agency of the
Company for such purpose. Pursuant to Section 301(9) of this Indenture,
the Company may subsequently appoint a place or places in the City of Grand
Rapids, Michigan, where such Securities may be payable.
Section 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date
of the principal of, any premium or interest on or Additional Amounts with
respect to any of the Securities of such series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum of Money
sufficient to pay the principal or any premium, interest or Additional
Amounts so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and shall promptly notify the
Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the
principal of, any premium or interest on or any Additional Amounts with
respect to any Securities of such series, deposit with any Paying Agent a
sum of Money sufficient to pay the principal or any premium, interest or
Additional Amounts so becoming due, such sum to be held in trust for the
benefit of the Persons entitled thereto, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee in writing of its
action or failure so to act.
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The Company shall cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the
principal of, any premium or interest on or any Additional
Amounts with respect to Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as provided in
or pursuant to this Indenture;
(2) give the Trustee written notice of any default by the
Company (or any other obligor upon the Securities of such series)
in the making of any payment of principal, any premium or
interest on or any Additional Amounts with respect to the
Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same terms as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such Money.
Except as otherwise provided in or pursuant to this Indenture,
any Money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, any premium or
interest on or any Additional Amounts with respect to any Security of any
series and remaining unclaimed for two years after such principal or any
such premium or interest or any such Additional Amounts shall have become
due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the
Holder of such Security or any Coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust Money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized
Newspaper in each Place of Payment for such series or to be mailed to
Holders of Registered Securities of such series, or both, notice that such
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Money remains unclaimed and that, after a date specified therein, shall not
be less than 30 days from the date of such publication or mailing nor shall
it be later than two years after such principal and any premium or interest
or Additional Amounts shall have become due and payable, any unclaimed
balance of such Money then remaining will be repaid to the Company.
Prior to the appointment of any Paying Agent (other than the
Company) by the Company for any series of Securities, the Company shall
give written notice of such appointment (which notice shall include the
address for purposes of notice hereunder of such Paying Agent) to the
Holders of the Securities of such series in accordance with the terms of
such series established hereby or pursuant hereto.
Section 1004. ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of
Additional Amounts, the Company agrees to pay to the Holder of any such
Security or any Coupon appertaining thereto Additional Amounts as provided
in or pursuant to this Indenture or such Securities. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal
of or any premium or interest on, or in respect of, any Security of any
series or any Coupon or the net proceeds received on the sale or exchange
of any Security of any series, such mention shall be deemed to include
mention of the payment of Additional Amounts provided by the terms of such
series established hereby or pursuant hereto to the extent that, in such
context, Additional Amounts are, were or would be payable in respect
thereof pursuant to such terms, and express mention of the payment of
Additional Amounts (if applicable) in any provision hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or
the Securities of the applicable series, if the Securities of a series
provide for the payment of Additional Amounts, at least 10 days prior to
the first Interest Payment Date with respect to such series of Securities
(or if the Securities of such series shall not bear interest prior to
Maturity, the first day on which a payment of principal is made) and at
least 10 days prior to each date of payment of principal or interest if
there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Company shall furnish to the
Trustee and the principal Paying Agent or Paying Agents, if other than the
Trustee, an Officers' Certificate setting forth any Additional Amounts due,
including their calculation, and instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of and premium, if
any, or interest on the Securities of such series shall be made to Holders
of Securities of such series or the Coupons appertaining thereto who are
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United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or Coupons, and the
Company agrees to pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities. The Company covenants to
pay any Additional Amounts due and to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of
them in reliance on any Officers' Certificate furnished pursuant to this
Section.
Section 1005. [RESERVED].
Section 1006. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and that of each Principal Constituent Bank and their
respective rights (charter and statutory) and franchises; PROVIDED,
HOWEVER, that the foregoing shall not (i) obligate the Company or any
Principal Constituent Bank to preserve any such right or franchise if the
Company or such Principal Constituent Bank, as the case may be, shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company or the business of such Principal
Constituent Bank and that the loss thereof is not disadvantageous in any
material respect to any Holder; (ii) prevent any consolidation or merger of
the Company, or any conveyance or transfer of its property and assets
substantially as an entirety to any person, permitted by Article Ten; or
(iii) prevent the liquidation or dissolution of the Company after any
conveyance or transfer of its property and assets substantially as an
entirety to any person permitted in this Indenture.
Section 1007. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Section 1006 with respect to
the Securities of any series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding
Securities of such series, by Act of such Holders, either shall waive such
compliance in such instance or generally shall have waived compliance with
such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
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waived, and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
Section 1008. COMPANY STATEMENT AS TO COMPLIANCE; NOTICE OF
CERTAIN DEFAULTS.
(1) The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year (which on the date hereof
ends on December 31), a written statement (which statement need
not be contained in or accompanied by an Officers' Certificate)
signed by the principal executive officer, the principal
financial officer or the principal accounting officer of the
Company, stating that
(A) a review of the activities of the Company during
such year and of its performance under this Indenture has
been made under his or her supervision, and
(B) to the best of his or her knowledge, based on such
review, (a) the Company has complied with all the conditions
and covenants imposed on it under this Indenture throughout
such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying
each such default known to him or her and the nature and
status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or
both would become, an Event of Default, or, if such an event
has occurred and is continuing, specifying each such event
known to him and the nature and status thereof.
(2) The Company shall deliver to the Trustee, within five
days after the occurrence thereof, written notice of any event
that is, or after notice or lapse of time (or both) would become,
an Event of Default.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. APPLICABILITY OF ARTICLE.
Redemption of Securities of any series at the option of the
Company as permitted or required by the terms of such Securities shall be
made in accordance with the terms of such Securities and (except as
otherwise provided herein or pursuant hereto) this Article.
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Section 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption
at the election of the Company of all, or less than all, of the Securities
of any series, with the same issue date, interest rate or formula, Stated
Maturity and other terms, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities of such series to
be redeemed.
Section 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series with the same issue
date, interest rate, Stated Maturity and other terms are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption,
substantially pro rata, by lot, or by such other method that the Trustee
shall deem fair and appropriate and, if the Securities are listed on any
securities exchange, that complies with the requirements of such exchange.
The Trustee may provide for the selection for redemption of portions of the
principal amount of Registered Securities of such series; PROVIDED,
HOWEVER, that no such partial redemption shall reduce the portion of the
principal amount of a Registered Security of such series not redeemed to
less than the minimum denomination for a Security of such series
established herein or pursuant hereto.
If any Security selected for partial redemption is converted or
exchanged in part before termination of any applicable conversion or
exchange right with respect to the portion of the Security so selected, the
converted or exchanged portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption. Securities that have
been converted or exchanged during a selection of Securities to be redeemed
shall be treated by the Trustee as Outstanding for the purpose of such
selection.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
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Section 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be
redeemed, to the Holders of Securities to be redeemed. Failure to give
notice by mailing in the manner herein provided to the Holder of any
Registered Securities designated for redemption as a whole or in part, or
any defect in the notice to any such Holder, shall not affect the validity
of the proceedings for the redemption of any other Securities or portion
thereof.
Any notice that is mailed to the Holder of any Registered
Securities in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of
partial redemption, the principal amount) of the particular
Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only,
the notice that relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the
Holder of such Security will receive, without charge, a new
Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(5) that, on the Redemption Date, the Redemption Price
shall become due and payable upon each such Security or portion
thereof to be redeemed, and, if applicable, that interest thereon
shall cease to accrue on and after said date;
(6) the place or places where such Securities, together (in
the case of Bearer Securities) with all Coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and any accrued
interest and Additional Amounts pertaining thereto;
(7) that the redemption is for a sinking fund, if such is
the case;
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(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must
be accompanied by all Coupons maturing subsequent to the date
fixed for redemption or the amount of any such missing Coupon or
Coupons will be deducted from the Redemption Price, unless
security or indemnity satisfactory to the Company, the Trustee
and any Paying Agent is furnished;
(9) if Bearer Securities of any series are to be redeemed,
any Registered Securities of such series are not to be redeemed,
and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on the Redemption Date
pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made;
(10) the CUSIP number or the Euro-clear or the CEDEL
reference numbers of such Securities, if any (or any other
numbers used by a Depository to identify such Securities); and
(11) in the case of Convertible Securities, the conversion
or exchange price or rate then in effect, the date or dates on
which the right to convert or exchange the principal amount of
such Convertible Securities or the portions thereof to be
redeemed will commence or terminate and the place or places where
such Securities may be surrendered for conversion or exchange.
A notice of redemption published as contemplated by Section 106
need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's written
request, by the Trustee in the name and at the expense of the Company.
Section 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of Money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) any
accrued and unpaid interest on and Additional Amounts with respect thereto,
all the Securities or portions thereof which are to be redeemed on that
date, other than Securities called for redemption on that date that have
been converted or exchanged prior to the date of such deposit.
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Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest
and the Coupons for such interest appertaining to any Bearer Securities so
to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Security for redemption in accordance with said
notice, together with all Coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at
the Redemption Price, together with any accrued interest and Additional
Amounts to the Redemption Date; PROVIDED, HOWEVER, that installments of
interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only upon presentation and surrender of
Coupons for such interest (at an Office or Agency located outside the
United States except as otherwise provided in Section 1002), and PROVIDED,
FURTHER, that installments of interest on Registered Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record
Dates therefor according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent any such missing Coupon in respect of which a deduction
shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; PROVIDED, HOWEVER, that any
interest or Additional Amounts represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an Office or Agency for
such Security located outside of the United States except as otherwise
provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until
paid, shall bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
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Section 1107. SECURITIES REDEEMED IN PART.
Any Registered Security that is to be redeemed only in part shall
be surrendered at any Office or Agency designated by the Company for such
Security (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company
and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge, a new Registered Security or Securities of the same series,
containing identical terms and provisions, of any authorized denomination
as requested by such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company
shall execute and the Trustee shall authenticate and deliver to the U.S.
Depository or other Depository for such Security in global form as shall be
specified in the Company Order with respect thereto to the Trustee, without
service charge, a new Security in global form in a denomination equal to
and in exchange for the unredeemed portion of the principal of the Security
in global form so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise
permitted or required by or pursuant to this Indenture or in any Security
of such series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of such series is herein referred
to as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series and the Indenture.
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Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of any series to be
made pursuant to the terms of such Securities, (1) deliver Outstanding
Securities of such series (other than any of such Securities previously
called for redemption or any of such Securities in respect of which cash
shall have been released to the Company), together in the case of any
Bearer Securities of such series with all unmatured Coupons appertaining
thereto, and (2) apply as a credit Securities of such series that have been
redeemed either at the election of the Company pursuant to the terms of
such series of Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, PROVIDED
that such series of Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly. If as a result of the delivery or credit of
Securities of any series in lieu of cash payments pursuant to this Section
1202, the principal amount of Securities of such series to be redeemed in
order to exhaust the aforesaid cash payment shall be less than $100,000,
the Trustee need not call Securities of such series for redemption, except
upon Company Request, and such cash payment shall be held by the Trustee or
a Paying Agent and applied to the next succeeding sinking fund payment,
PROVIDED, HOWEVER, that the Trustee or such Paying Agent shall at the
written request of the Company from time to time pay over and deliver to
the Company any cash payment so being held by the Trustee or such Paying
Agent upon delivery by the Company to the Trustee of Securities of that
series purchased by the Company having an unpaid principal amount equal to
the cash payment requested to be released to the Company.
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 75 days prior to each sinking fund payment date for
any series of Securities, the Company shall deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing mandatory
sinking fund payment for that series pursuant to the terms of that series,
the portion thereof, if any, that is to be satisfied by payment of cash and
the portion thereof, if any, that is to be satisfied by delivering and
crediting of Securities of that series pursuant to Section 1202, and the
optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and will also deliver to the Trustee any Securities
to be so credited and not theretofore delivered. If such Officers'
Certificate shall specify an optional amount to be added in cash to the
next ensuing mandatory sinking fund payment, the Company shall thereupon be
obligated to pay the amount therein specified. Not less than 60 days
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before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. APPLICABILITY OF ARTICLE.
Securities of any series that are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance
with the terms of the Securities of such series. The repayment of any
principal amount of Securities pursuant to such option of the Holder to
require repayment of Securities before their Stated Maturity, for purposes
of Section 309, shall not operate as a payment, redemption or satisfaction
of the indebtedness represented by such Securities unless and until the
Company, at its option, shall deliver or surrender the same to the Trustee
with a written directive that such Securities be canceled. Notwithstanding
anything to the contrary contained in this Section 1301, in connection with
any repayment of Securities, the Company may arrange for the purchase of
any Securities by an agreement with one or more investment bankers or other
purchasers to purchase such Securities by paying to the Holders of such
Securities on or before the close of business on the repayment date an
amount not less than the repayment price payable by the Company on
repayment of such Securities, and the obligation of the Company to pay the
repayment price of such Securities shall be satisfied and discharged to the
extent such payment is so paid by such purchasers.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. APPLICABILITY OF ARTICLE.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series
in which not all of such Securities are denominated in the same Currency,
or (ii) any distribution to Holders of Securities, in the absence of any
provision to the contrary in the form of Security of any particular series
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or pursuant to this Indenture or the Securities, any amount in respect of
any Security denominated in a Currency other than Dollars shall be treated
for any such action or distribution as that amount of Dollars that could be
obtained for such amount on such reasonable basis of exchange and as of the
record date with respect to Registered Securities of such series (if any)
for such action, determination of rights or distribution (or, if there
shall be no applicable record date, such other date reasonably proximate to
the date of such action, determination of rights or distribution) as the
Company may specify in a written notice to the Trustee or, in the absence
of such written notice, as the Trustee may determine.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be called at
any time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent, waiver
or other Act provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
Section 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(1) The Trustee may at any time call a meeting of Holders
of Securities of any series for any purpose specified in Section
1501, to be held at such time and at such place in [ ],
or, if Securities of such series have been issued in whole or in
part as Bearer Securities, in [ ] or in such place
outside the United States as the Trustee shall determine. Notice
of every meeting of Holders of Securities of any series, setting
forth the time and the place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given,
in the manner provided in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a
Board Resolution) or the Holders of at least 10 percent in
principal amount of the Outstanding Securities of any series
shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section
1501, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall
not have mailed notice of or made the first publication of the
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notice of such meeting within 21 days after receipt of such
request (whichever shall be required pursuant to Section 106) or
shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be,
may determine the time and the place in [ ], [
], or, if Securities of such series are to be issued as
Bearer Securities, in ___________ for such meeting and may call
such meeting for such purposes by giving notice thereof as
provided in paragraph (1) of this Section.
Section 1503. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders of
Securities of any series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
Section 1504. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series, PROVIDED, however, that if
any action is to be taken at such meeting with respect to a consent or
waiver that this Indenture expressly provides may be given by the Holders
of a greater percentage in principal amount of the Outstanding Securities
of a series, the Persons entitled to vote such greater percentage in
principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any
other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of
not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of
any adjourned meeting shall be given as provided in Section 1502(a), except
that such notice need be given only once not less than five days prior to
the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage,
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as provided above, of the principal amount of the Outstanding Securities of
such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted only by the affirmative vote
of the Holders of a majority in principal amount of the Outstanding
Securities of that series; PROVIDED, HOWEVER, that, except as limited by
the proviso to Section 902, any resolution with respect to any consent or
waiver that this Indenture expressly provides may be given by the Holders
of a greater percentage in principal amount of the Outstanding Securities
of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid only by the
affirmative vote of the Holders of such greater percentage in principal
amount of the Outstanding Securities of that series; and provided, further,
that, except as limited by the provisos to Section 902, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act that this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, that is less than
a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding
Securities of that series.
Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section shall
be binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or
represented at the meeting.
Section 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(1) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of such series
in regard to proof of the holding of Securities of such series
and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the person
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executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in
Section 104 or other proof
(2) The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall
have been called by the Company or by Holders of Securities as
provided in Section 1502(b), in which case the Company or the
Holders of Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a
majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such
series or proxy shall be entitled to one vote for each $1,000
principal amount of Securities of such series held or represented
by him; PROVIDED, HOWEVER, that no vote shall be cast or counted
at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may
be adjourned from time to time by Persons entitled to vote a
majority in principal amount of the Outstanding Securities of
such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
Section 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders
of Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of
Holders of Securities of any series shall be prepared by the secretary of
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the meeting and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
given as provided in Section 1502 and, if applicable, Section 1504. Each
copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered
to the Company, and another to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted at the meeting. Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
ARTICLE SIXTEEN
CONVERSION OF SECURITIES
Section 1601. CONVERSION PRIVILEGE.
Subject to and upon compliance with the provisions of this
Article Sixteen and the terms of the Convertible Securities of the series
proposed to be converted into Common Stock, at the option of the Holder,
such Convertible Security or any portion of the principal amount thereof
which is $1,000 or an integral multiple thereof may be converted into
shares of Common Stock, as said shares shall be constituted at the Date of
Conversion, at the Conversion Price for such Convertible Securities of such
series in effect at the Date of Conversion.
Section 1602. MANNER OF EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any
Convertible Security to be converted shall surrender such Convertible
Security to the Company at its Office or Agency maintained for such
purpose, together with the conversion notice in the form provided on the
Securities (or separate written notice) duly executed, and, if so required
by the Company, accompanied by instruments of transfer, in form
satisfactory to the Company and to the Trustee, duly executed by the Holder
or by his duly authorized attorney in writing. Any Registered Convertible
Security so surrendered during the period from the close of business on the
Regular Record Date preceding an Interest Payment Date for such Registered
Convertible Security to the opening of business on such Interest Payment
Date shall (unless any such Registered Convertible Security or the portion
thereof being converted shall have been called for redemption on a
Redemption Date during such period, in which event no interest shall be
payable with respect to such Registered Convertible Security or portion
thereof, as the case may be, following such Redemption Date, and the Date
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of Conversion shall be one Business Day prior to such Redemption Date) also
be accompanied by payment in New York Clearing House funds or other funds
acceptable to the Company of an amount equal to the interest payable on
such Interest Payment Date on the principal amount of such Registered
Convertible Security then being converted; PROVIDED, HOWEVER, that no such
payment need be made if there shall exist, at the time of conversion, a
default in the payment of interest on the Convertible Securities of such
series. Except as provided in the immediately preceding sentence, no
adjustment shall be made for interest accrued on any Convertible Security
that shall be converted or for dividends on any shares of Common Stock that
shall be delivered upon the conversion of such Convertible Securities. The
funds so delivered to such Office or Agency shall be paid to the Company on
or after such Interest Payment Date, unless the Company shall default in
the payment of the interest due on such Interest Payment Date, in which
event such funds shall be repaid to the Person who delivered the same. As
promptly as practicable after the surrender of any Convertible Security for
conversion as aforesaid, the Company shall deliver at said Office or Agency
to such Holder, or on his written order, a certificate or certificates for
the number of full shares deliverable upon the conversion of such
Convertible Security or portion thereof and a check or cash in respect of
any fraction of a share of Common Stock otherwise deliverable upon such
conversion, all as provided in this Article Sixteen, together with a
Convertible Security or Convertible Securities of the same series in
principal amount equal to the unconverted and unredeemed portion, if any,
of Convertible Security so converted in accordance with Section 305 hereof.
Such conversion shall be deemed to have been effected on the date on which
such notice shall have been received at said Office or Agency and such
Convertible Security shall have been surrendered as aforesaid, and the
Person or Persons in whose name or names any certificate or certificates
for shares of Common Stock shall be deliverable upon such conversion shall
be deemed to have become on said date the Holder or Holders of record of
the shares represented thereby, PROVIDED, HOWEVER, that any such surrender
on any date when the stock transfer books of the Company shall be closed
shall constitute the Person or Persons in whose name or names the
certificates are to be delivered as the record Holder or Holders thereof
for all purposes on the next succeeding day on which such stock transfer
books are open, but such conversion shall be at the Conversion Price in
effect on the date of such surrender.
Section 1603. CASH ADJUSTMENT UPON CONVERSION.
The Company shall not be required to deliver fractions of shares
of Common Stock upon conversions of Convertible Securities. If more than
one Convertible Security shall be surrendered for conversion at one time by
the same Holder, the number of full shares that shall be deliverable upon
conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities so surrendered. If any fractional
interest in a share of Common Stock would be deliverable upon the
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conversion of any Convertible Security or Securities, the Company shall
make an adjustment therefor in cash equal to the current market value of
such fractional interest computed to the nearest cent either on the basis
of the last reported sale price regular way of the Common Stock on the New
York Stock Exchange (or, if not listed on the New York Stock Exchange then
on such other exchange on which the shares of Common Stock are listed as
the Company may designate) on the last Business Day prior to the Date of
Conversion or, if there shall not have been a sale on such last Business
Day, on the basis of the average of the bid and asked quotations therefor
on such exchange on such last Business Day or, if the Common Stock shall
not then be listed on any exchange, at the highest bid quotation in the
over-the-counter market on such last Business Day as reported by the
National Association of Securities Dealers through NASDAQ, its automated
system for, reporting quotes, or its successor or such other generally
accepted source of publicly reported bid and asked quotations as the
Company may reasonably designate.
Section 1604. CONVERSION PRICE.
The Conversion Price applicable to any series of Convertible
Securities shall be the initial Conversion Price set forth on the Officers'
Certificate or supplemental indenture establishing such series adjusted as
provided in this Article Sixteen.
Section 1605. ADJUSTMENT OF CONVERSION PRICE.
The Conversion Price applicable to any series of Convertible
Securities shall be adjusted from time to time as follows:
(1) In case the Company shall, at any time or from time to
time while the Securities of any series are outstanding, (i) pay
a dividend on its Common Stock in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock into a larger
number of shares, or (iii) combine its outstanding Common Stock
into a smaller number of shares, the Conversion Price for such
series in effect immediately prior thereto shall be adjusted so
that the Holder of any Security of such series thereafter
surrendered for conversion shall be entitled to receive the
number of shares of Common Stock or other securities of the
Company which he would have owned or have been entitled to
receive after the happening of any of the events described above,
had such Convertible Security of such series been converted
immediately prior to the happening of such event. An adjustment
made pursuant to this subdivision (1) shall become effective
retroactively, in the case of a dividend, on the payment date to
immediately after the opening of business on the day following
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the record date for the determination of shareholders entitled to
receive such dividend, subject to the provisions of paragraph (7)
of this Section 1605, and shall become effective in the case of a
subdivision or combination immediately after the opening of
business on the day following the day when such subdivision or
combination, as the case may be, becomes effective.
(2) In case the Company shall, at any time or from time to
time while the Convertible Securities of any series are
outstanding, issue rights or warrants to all holders of its
shares of Common Stock entitling them (for a period expiring
within 45 days of the record date mentioned below) to subscribe
for or purchase shares of Common Stock at a price per share less
than the current market price per share of Common Stock (as
defined in paragraph (7) below) at such record date, the
Conversion Price of any series of Convertible Securities in
effect immediately prior to the issuance of such rights or
warrants shall be adjusted as follows: the number of shares of
Common Stock into which $1,000 principal amount of Convertible
Securities of such series was theretofore convertible shall be
multiplied by a fraction, of which the numerator shall be the
number of shares of Common Stock outstanding immediately prior to
such record date plus the number of additional shares of Common
Stock offered for subscription or purchase, and of which the
denominator shall be the number of shares of Common Stock
outstanding immediately prior to such record date plus the number
of shares which the aggregate offering price of the total number
of shares so offered would purchase at such current market price;
and the Conversion Price for such series of Convertible
Securities shall be adjusted by dividing $1,000 by the new number
of shares into which $1,000 principal amount of Securities of
such series shall be convertible as aforesaid. Such adjustment
shall become effective on the date of such issuance retroactively
to immediately after the opening of business on the day following
the record date for the determination of shareholders entitled to
receive such rights or warrants, subject to the provisions of
paragraph (7) of this Section 1605. In determining whether any
rights or warrants entitle the holders to subscribe for or
purchase shares of Common Stock at less than such current market
price, and in determining the aggregate offering price of such
shares, there shall be taken into account any consideration
received by the Company for such rights or warrants, the value of
such consideration, if other than cash, to be determined by the
Board of Directors.
(3) In case the Company shall, at any time or from time to
time while the Convertible Securities of any series are
outstanding, distribute to all holders of shares of its Common
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Stock evidences of its indebtedness or securities or assets
(excluding cash dividends or cash distributions payable out of
consolidated net earnings or retained earnings) or rights or
warrants to subscribe for shares of Common Stock at a price per
share less than the current market price per share of Common
Stock, determined in the manner set forth in paragraph (4) below,
but excluding rights or warrants referred to in paragraph (2)
above, the Conversion Price for such series of Convertible
Securities in effect immediately prior to such distribution shall
be adjusted by multiplying the number of shares of Common Stock
into which $1,000 principal amount of Convertible Securities of
such series of Convertible Securities was theretofore convertible
by a fraction, of which the numerator shall be the current market
price per share of Common Stock (as defined in paragraph (4)
below) on the record date for such distribution, and of which the
denominator shall be such current market price per share of the
Common Stock, less the then fair market value (as determined by
the Board of Directors of the Company, whose determination shall
be conclusive) of the portion of such evidences of indebtedness,
securities or assets or of such subscription rights or warrants
so distributed applicable to one share of Common Stock; and the
Conversion Price for such series of Convertible Securities shall
be adjusted by dividing $1,000 by the new number of shares into
which $1,000 principal amount of Convertible Securities of such
series shall be convertible as aforesaid. Such adjustment shall
become effective on the date of such distribution retroactively
to immediately after the opening of business on the day following
the record date for the determination of shareholders entitled to
receive such distribution, subject to the provisions of paragraph
(7) of this Section 1605. For the purposes of this paragraph (3)
consolidated net earnings or retained earnings shall be computed
by adding thereto all charges against retained earnings on
account of dividends paid in shares of Common Stock in respect of
which the Conversion Price has been adjusted, all as determined
by Independent Public Accountants, whose determination shall be
conclusive.
(4) For the purpose of any computation under paragraphs (2)
and (3) above, the current market price per share of Common Stock
at any date shall be deemed to be the average of the market
values of the shares of Common Stock for the ten consecutive
Business Days immediately preceding the day in question. The
market value of the Common Stock for each day shall be determined
as provided in Section 1603 hereof.
(5) The Company may make such reductions in the Conversion
Price for any series of Convertible Securities, in addition to
those required by paragraphs (1), (2) and (3) of this Section as
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it considers to be advisable in order that any event treated for
U.S. federal income tax purposes as a dividend of stock or stock
rights shall not be taxable to the recipients.
(6) Except as herein otherwise provided, no adjustment in
the Conversion Price for any series of Convertible Securities
shall be made by reason of the issuance, in exchange for cash,
property or services, of shares of Common Stock, or any
securities convertible into or exchangeable for shares of Common
Stock, or carrying the right to purchase any of the foregoing.
(7) If the Company shall take a record of the holders of
its shares of Common Stock for the purpose of entitling them to
receive any dividend or any subscription or purchase rights or
any distribution and shall, thereafter and before the
distribution to shareholders of any such dividend, subscription
or purchase rights or distribution, legally abandon its plan to
pay or deliver such dividend, subscription or purchase rights or
distribution, then no adjustment of the Conversion Price for any
series of Convertible Securities shall be required by reason of
the taking of such record.
(8) No adjustment in the Conversion Price for any series of
Convertible Securities shall be required unless such adjustment
would require an increase or decrease of at least 1 percent in
such price; PROVIDED, HOWEVER, that any adjustments that by
reason of this paragraph 8, are not required to be made shall be
carried forward and taken into account in any subsequent
adjustment. All calculations under this Article Sixteen shall be
made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be.
(9) Whenever the Conversion Price for any series of
Convertible Securities is adjusted as herein provided, the
Company shall (i) forthwith place on file at the Corporate Trust
Office of the Trustee an Officers' Certificate showing in detail
the facts requiring such adjustment and the Conversion Price
after such adjustment and shall exhibit the same from time to
time to any Holder of Convertible Securities of such series
desiring an inspection thereof, and (ii) cause a notice stating
that such adjustment has been effected and the adjusted
Conversion Price to be mailed to the Holders of Registered
Convertible Securities of such series at their last addresses as
they shall appear on the Security Register.
(10) The Company may delete, modify or vary any of the
provisions applicable to conversion of the Convertible Securities
of any series, or may add new provisions applicable thereto, all
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as may be contained in the Board Resolutions and Officers'
Certificate or supplemental indenture establishing such series.
Section 1606. EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS,
MERGERS OR SALES ON CONVERSION PRIVILEGE.
In case of any reclassification or change of outstanding shares
of the class of Common Stock issuable upon conversion of the Convertible
Securities (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision
or combination), or in case of any merger or consolidation of the Company
with one or more other corporations (other than a merger or consolidation
in which the Company is the continuing corporation and which does not
result in any reclassification or change of outstanding shares of Common
Stock issuable upon conversion of the Securities), or in case of the merger
of the Company into another corporation, or in case of any sale or
conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety, the Holder of Convertible
Securities of each then outstanding shall have the right to convert such
Convertible Security into the kind and amount of shares of capital stock or
other securities and property, including cash, receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a
holder of the number of shares of Common Stock into which such Convertible
Security might have been converted immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance. In
any such case the Company, or such successor or purchasing corporation, as
the case may be, shall execute with the Trustee one or more supplemental
indentures containing provisions to the effect set forth above in this
Section 1606 and providing further for adjustments that shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Article Sixteen; and any such adjustment that shall be approved by the
Board of Directors and set forth in such supplemental indenture or
supplemental indentures shall be conclusive for all purposes of this
Section, and the Trustee shall not be under any responsibility to determine
the correctness of any provision contained in such supplemental indenture
or supplemental indentures relating to either the kind or amount of shares
of stock or securities or property receivable by Holders of Securities of
any series upon the conversion of their Convertible Securities after any
such reclassification, change, consolidation, merger, sale or conveyance.
The above provisions of this Section 1606 shall similarly apply
to successive reclassifications, changes, consolidations, mergers, sales
and conveyances.
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Section 1607. TAXES ON CONVERSIONS.
The issue of stock certificates on conversions of Convertible
Securities shall be made without charge to the converting Holder of
Convertible Securities for any tax in respect of the issue thereof. The
Company shall not, however, be required to pay any tax that may be payable
in respect of any transfer involved in the issue and delivery of shares in
any name other than that of the Holder of any Registered Convertible
Security converted, and the Company shall not be required to issue or
deliver any such stock certificate unless and until the Person or Persons
requesting the issue thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that
such tax has been paid.
Section 1608. COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times reserve and keep available out of
the aggregate of its authorized but unissued shares or its issued shares
held in its treasury, or both, for the purpose of effecting the conversion
of the Securities, such number of its duly authorized shares of Common
Stock as shall from time to time be sufficient to effect the conversion of
all Outstanding Securities.
If any shares of Common Stock reserved or to be reserved for the
purpose of conversion of Securities hereunder require registration with or
approval of any governmental authority under any Federal or State law
before such shares may be validly delivered upon conversion, then the
Company covenants that it will in good faith and as expeditiously as
possible endeavor to secure registration or approval, as the case may be.
The Company covenants that all shares of Common Stock that may be
delivered upon conversion of Convertible Securities shall upon delivery be
fully paid and nonassessable by the Company and free from all taxes, liens
and charges with respect to the issue or delivery thereof.
Section 1609. DISCLAIMER BY TRUSTEE OF RESPONSIBILITY FOR
CERTAIN MATTERS.
Neither the Trustee nor any conversion agent shall at any time be
under any duty or responsibility to any Holder of Convertible Securities of
any series to determine whether any facts exist that may require any
adjustment of the Conversion Price for such series, or with respect to the
nature or extent of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same, subject, however, to the provisions of
Sections 315(a) through 315(b) of the Trust Indenture Act. Neither the
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Trustee nor any conversion agent shall be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common Stock, or
of any securities or property that may at any time be issued or delivered
upon the conversion of any Convertible Security; and neither of them makes
any representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to
make any cash payment or to issue, transfer or deliver any shares of Common
Stock or stock certificates or other securities or property upon the
surrender of any Security for the purpose of conversion or, subject to
Sections 315(a) through 315(b) of the Trust Indenture Act, to comply with
any of the covenants of the Company contained in this Article Sixteen.
Section 1610. COMPANY TO GIVE NOTICE OF CERTAIN EVENTS.
In the event
(1) that the Company shall pay any dividend or make any
distribution to the holders of shares of Common Stock otherwise
than in cash charged against consolidated net earnings or
retained earnings of the Company and its consolidated net
earnings or retained earnings of the Company and its consolidated
subsidiaries or in Common Stock; or
(2) that the Company shall offer for subscription or
purchase, pro rata, to the holders of shares of Common Stock any
additional shares of stock of any class or any securities
convertible into or exchangeable for stock of any class; or
(3) of any reclassification or change of outstanding shares
of the class of Common Stock issuable upon the conversion of the
Securities (other than a change in par value, or from par value
to no par value, or from no par value to par value, or as a
result of a subdivision or combination), or of any merger or
consolidation of the Company with, or merger of the Company into,
another corporation (other than a merger or consolidation in
which the Company is the continuing corporation and which does
not result in any reclassification or change of outstanding
shares of Common Stock issuable upon conversion of the
Securities), or of any sale or conveyance to another corporation
of the property of the Company as an entirety or substantially as
an entirety;
then, and in any one or more of such events, the Company will give to the
Trustee and each conversion agent written notice thereof at least fifteen
days prior to (i) the record date fixed with respect to any of the events
specified in (1) and (2) above, and (ii) the effective date of any of the
events specified in (3) above; and shall mail promptly a copy of such
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notice to the Holders of Registered Convertible Securities at their last
addresses as they shall appear upon the Security Register. Failure to give
such notice, or any defect therein, shall not affect the legality or
validity of such dividend, distribution, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.
ARTICLE SEVENTEEN
SUBORDINATION OF SECURITIES
Section 1701. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company, for itself, its successors and assigns, covenants
and agrees, and each Holder of Securities, by his acceptance thereof,
likewise covenants and agrees, that the indebtedness evidenced by the
Securities and the payment of the principal of (and premium, if any) and
interest on and any Additional Amounts payable in respect thereof is hereby
expressly subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of Senior
Indebtedness. The Company, for itself, its successors and assigns,
covenants and agrees, and each Holder of Securities, by his acceptance
thereof, likewise covenants and agrees, that the indebtedness evidenced by
the Securities and the payment of the principal of (and premium, if any)
and interest on and any Additional Amounts payable in respect thereof is
hereby expressly senior, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of the Company's
floating rate junior subordinated debenture, dated January 31, 1997, issued
to the Old Kent Capital Trust I (the "Junior Subordinated Debenture") and,
unless expressly by its terms, any indebtedness in respect of debt
securities issued to any trust, or a trustee of such trust, partnership or
other entity affiliated with the Company that is a financing entity of the
Company in connection with the issuance of such financing entity of
securities that are similar to the Junior Subordinated Debenture.
Anything in this Indenture or in the Securities of any series to
the contrary notwithstanding, the indebtedness evidenced by the Securities
shall be subordinate and junior in right of payment, to the extent and in
the manner hereinafter set forth, to all Senior Indebtedness:
(1) In the event of any insolvency or bankruptcy
proceedings, and any receivership, liquidation, reorganization,
arrangement or other similar proceedings in connection therewith,
relative to the Company or to its property, and in the event of
any proceedings for voluntary liquidation, dissolution or other
winding up of the Company, whether or not involving insolvency or
bankruptcy, then the holders of Senior Indebtedness shall be
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entitled to receive payment in full of all principal, premium and
interest on all Senior Indebtedness before the Holders of the
Securities are entitled to receive any payment on account of
principal, premium, if any, or interest or Additional Amounts
upon the Securities, and to that end (but subject to the power of
a court of competent jurisdiction to make other equitable
provisions reflecting the rights conferred in this Indenture upon
Senior Indebtedness and the holders thereof with respect to the
subordinated indebtedness represented by the Securities and the
Holders thereof by a lawful plan of reorganization under
applicable bankruptcy law) the holders of Senior Indebtedness
shall be entitled to receive for application in payment thereof
any payment or distribution of any kind or character, whether in
cash or property or securities, which may be payable or
deliverable in any such proceedings in respect of the Securities
after giving effect to any concurrent payment or distribution in
respect of such Senior Indebtedness; and
(2) If any default shall occur and be continuing with
respect to any Senior Indebtedness beyond any applicable grace
period, no payment by the Company on account of principal,
premium, if any, or interest or Additional Amounts on the
Securities shall be made unless full payment of amounts then due
for principal, premium, if any, and interest on such Senior
Indebtedness shall have been made or provided for.
In case, despite the foregoing provisions, any payment or
distribution shall, in any such event, be paid or delivered to any Holder
of the Securities or to the Trustee for their benefit before all Senior
Indebtedness shall have been paid in full, such payment or distribution
shall be held in trust for and so paid and delivered to the holders of
Senior Indebtedness (or their duly authorized representatives) until all
Senior Indebtedness shall have been paid in full.
The Company shall give written notice to the Trustee within five
days after the occurrence of any insolvency, bankruptcy, receivership,
liquidation, reorganization, arrangement or similar proceeding of the
Company within the meaning of this Section 1701. Upon any payment or
distribution of assets of the Company referred to in this Article
Seventeen, the Trustee, subject to the provisions of Section 315(a) through
315(b) of the Trust Indenture Act, and the Holders of the Securities shall
be entitled to rely upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors or other liquidating agent
making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of the Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable
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thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Seventeen.
In the event that the Trustee determines, in good faith, that
further evidence is required with respect to the right of any person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Section 1701, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such person, as to the extent to
which such person is entitled to participate in such payment or
distribution, and as to other facts pertinent to rights of such person
under this Section 1701, and if such evidence is not furnished, the Trustee
may defer any payment to such person pending judicial determination as to
the right of such person to receive such payment.
Section 1702. SUBROGATION.
Subject to the payment in full of all Senior Indebtedness to
which the indebtedness evidenced by the Securities is in the circumstances
subordinated as provided in Section 1701, the Holders of the Securities
shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until all
amounts owing on the Securities shall be paid in full, and, as between the
Company, its creditors other than holders of such Senior Indebtedness, and
the Holders of the Securities, no such payment or distribution made to the
holders of such Senior Indebtedness by virtue of this Article Seventeen
that otherwise would have been made to the Holders of the Securities shall
be deemed to be a payment by the Company on account of such Senior
Indebtedness, it being understood that the provisions of this Article
Seventeen are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
Section 1703. OBLIGATION OF COMPANY UNCONDITIONAL.
Nothing contained in this Article Seventeen or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Indebtedness
and the Holders of the Securities, the obligation of the Company, which
obligation is absolute and unconditional, to pay to the Holders of the
Securities the principal of (and premium, if any), interest on, or any
Additional Amounts with respect to, the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the Holders of the Securities and
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creditors of the Company other than the holders of Senior Indebtedness nor
shall anything herein or therein prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under
this Article Seventeen of the holders of Senior Indebtedness in respect of
cash, property or securities of the Company received upon the exercise of
any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article Seventeen, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which any such dissolution, winding up,
liquidation or reorganization proceeding affecting the affairs of the
Company is pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors, liquidating trustee or
agent or other person making any payment or distribution, delivered to the
Trustee, or to the Holders of the Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness
of the Company the amount thereof or payable thereon, the amount paid or
distributed thereon and all other facts pertinent thereto or to this
Article Seventeen.
Section 1704. PAYMENTS ON SECURITIES PERMITTED.
Nothing contained in this Article Seventeen or elsewhere in this
Indenture, or in any of the Securities, shall affect the obligation of the
Company to make, or prevent the Company from making, payment of the
principal of (or premium, if any), interest or any Additional Amounts on
the Securities in accordance with the provisions hereof and thereof, except
as otherwise provided in this Article Seventeen.
Section 1705. EFFECTUATION OF SUBORDINATION BY TRUSTEE.
Each Holder of Securities, by his acceptance thereof, authorizes
and directs the Trustee in his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Seventeen and appoints the Trustee his attorney-in-fact for any and
all such purposes.
Section 1706. KNOWLEDGE OF AND NOTICE TO TRUSTEE.
Notwithstanding the provisions of this Article Seventeen or any
other provisions of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of
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any payment of monies to or by the Trustee, or the taking of any other
action by the Trustee, unless and until the Trustee shall have received
written notice thereof from the Company, any Holder of the Securities, any
paying or conversion agent of the Company or the holder or representative
of any class of Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company that would prohibit the making of any payment
to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article Seventeen or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment to or by the
Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof, at least three Business Days prior to
any payment date, from the Company or a holder of any class of Senior
Indebtedness or from any trustee therefor; and, prior to the receipt of any
such written notice, the Trustee shall be entitled in all respects to
assume that no such facts exist.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee therefor). In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Seventeen, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Seventeen, and if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment.
Section 1707. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.
Except as otherwise provided in the Trust Indenture Act, the
Trustee shall be entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness at the time held by it, to the same
extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Notwithstanding anything in this Indenture or in the Securities of any
series, nothing in this Article Seventeen shall apply to claims of or
payment to the Trustee under or pursuant to Sections 506 and 605.
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With respect to holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Seventeen, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness but shall have only such obligations as are expressly
set forth in this Article Seventeen.
Section 1708. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT
IMPAIRED.
No right of any present or future holder of any Senior
Indebtedness to enforce the subordination herein shall at any time or in
any way be prejudiced or impaired by any act or failure to act on the part
of the Company or by any noncompliance by the Company with the terms,
provisions or covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
ARTICLE EIGHTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS
Section 1801. EXEMPTION FROM INDIVIDUAL LIABILITY.
No recourse under or upon any obligation, covenant or agreement
of this Indenture, or of any Security or coupon, or for any claim based
thereon or otherwise in respect thereof, shall be had against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations of the Company, and that no such
personal liability whatever shall attach to, or is or shall be incurred by,
the incorporators, shareholders, officers or directors, as such, of the
Company or of any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or coupons or implied therefrom; and that any and all
such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims
against, every such incorporator, shareholder, officer or director, as
such, because of the creation of the indebtedness hereby authorized, or
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under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or coupons or implied therefrom,
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of the
Securities.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed, all as of the day and year first above written.
[SEAL] OLD KENT FINANCIAL CORPORATION
Attest:
By
Name
Title
[SEAL] [ ], as Trustee
Attest:
By
Name
Title
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EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
CERTIFICATE
_________________________
[Insert title or sufficient description of Securities to be delivered]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States person, or, if a beneficial
interest in the Securities is being acquired by or on behalf of a United
States person, that such United States person is a financial institution
within the meaning of Section 1.165-12(c)(1)(v) of the United States
Treasury regulations that agrees to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended
and the regulations thereunder. If the undersigned is a dealer, the
undersigned agrees to obtain a similar certificate from each person
entitled to delivery of any of the above-captioned Securities in bearer
form purchased from it; provided, however, that, if the undersigned has
actual knowledge that the information contained in such a certificate is
false, the undersigned will not deliver a Security in temporary or
definitive bearer form to the person who signed such certificate
notwithstanding the delivery of such certificate to the undersigned.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created
or organized in or under the laws of the United States and any estate or
trust the income of which is subject to United States Federal income
taxation regardless of its source, and "United States" means the United
States of America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the above-
captioned Securities in bearer form as to all of such Securities.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to
<PAGE>
produce this certificate or a copy thereof to any interested party in such
proceedings.
Dated: _______________, 19__
[To be dated no earlier than 15 days prior
to the Exchange Date]
[Name of Person Entitled to
Receive Bearer Security]
(Authorized Signatory)
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A.
IN CONNECTION WITH THE EXCHANGE OF A PORTION
OF A TEMPORARY GLOBAL SECURITY
CERTIFICATE
_________________________
[Insert title or sufficient description of Securities to be delivered]
This is to certify with respect to $_________ principal amount of the
above-captioned Securities (i) that we have received from each of the
persons appearing in our records as persons entitled to a portion of such
principal amount (our "Qualified Account Holders") a certificate with
respect to such portion substantially in the form attached hereto, and (ii)
that we are not submitting herewith for exchange any portion of the
temporary global Security representing the above-captioned Securities
excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that
the statements made by such Qualified Account Holders with respect to any
portion of the part submitted herewith for exchange are no longer true and
cannot be relied upon as of the date hereof.
Dated: _________________, 19___
[To be dated no earlier than
the Exchange Date]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
Brussels Office, as Operator of the
Euro-clear System]
[CEDEL S.A.]
By
<PAGE>
EXHIBIT C
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A. TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
_________________________
[Insert title or sufficient description of Securities]
This is to certify that, as of the Interest Payment Date on [Insert Date],
the undersigned, which is a holder of an interest in the temporary global
Security representing the above Securities, is not a United States person.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created
or organized in or under the laws of the United States and any estate or
trust the income of which is subject to United States Federal income
taxation regardless of its source, and "United States" means the United
States of America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
We confirm that the interest payable on such Interest Payment Date
will be paid to each of the persons appearing in our records as being
entitled to interest to be paid on the above date from whom we have
received a written certification dated not earlier than 15 days prior to
such Interest Payment Date to the effect that the beneficial owner of such
portion with respect to which interest is to be paid on such date either is
not a United States person or is a United States person which is a
financial institution which has provided an Internal Revenue Service Form
W-9 or is an exempt recipient as defined in United States Treasury
Regulations (S) 1.6049-4(c)(1)(ii). We undertake to retain certificates
received from our member organizations in connection herewith for four
years from the end of the calendar year in which such certificates are
received.
The foregoing reflects any advice received subsequent to the date of
any certificate stating that the statements contained in such certificate
are no longer correct.
Dated: ________________, 19__
[To be dated on or after the
relevant Interest Payment Date]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, Brussels Office, as Operator
of the Euro-clear System]
[CEDEL S.A.]
By
<PAGE>
EXHIBIT D
FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
________________________
[Insert title or sufficient description of Securities]
This is to certify that as of the date hereof, no portion of the
temporary global Security representing the above-captioned Securities and
held by you for our account is beneficially owned by a United States person
or, if any portion thereof held by you for our account is beneficially
owned by a United States person, such United States person is a financial
institution within the meaning of Section 1.165-12(c)(1)(v) of the United
States Treasury regulations which agrees to comply with Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended
and the regulations thereunder, and certifies that either it has provided
an Internal Revenue Service Form W-9 or is an exempt recipient as defined
in Section 1.6049-4(c)(1)(ii) of the United States Treasury regulations.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created
or organized in or under the laws of the United States and any estate or
trust the income of which is subject to United States Federal income
taxation regardless of its source, and "United States" means the United
States of America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the Interest Payment Date on [Insert
Date] as to any such portion of such temporary global Security.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such
proceedings.
Dated: _______________, 19__
[To be dated on or after the
15th day before the relevant
Interest Payment Date] [name of Account Holder]
(Authorized Signatory)
Name:
Title:
<PAGE>
EXHIBIT 4.13
OLD KENT FINANCIAL CORPORATION
and
_____________________,
as Warrant Agent
WARRANT AGREEMENT
Dated as of ____________, ____
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I - ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES . . . . . . . . . . . . . . . . . . .2
SECTION 1.01. Issuance of Warrants . . . . . . . . . . . . . . . . .2
SECTION 1.02. Execution and Delivery of Warrant Certificates . . . .2
SECTION 1.03. Issuance of Warrant Certificates . . . . . . . . . . .4
ARTICLE II - WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS. . . . . . .4
SECTION 2.01. Warrant Price. . . . . . . . . . . . . . . . . . . . .4
SECTION 2.02. Duration of Warrants . . . . . . . . . . . . . . . . .5
SECTION 2.03. Exercise of Warrants . . . . . . . . . . . . . . . . .5
ARTICLE III - OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES. . . . . . . . . . . . . . . . . . . . . .6
SECTION 3.01. No Rights as Warrant Securityholders Conferred by
Warrants or Warrant Certificates . . . . . . . . . . .6
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates . . . . . . . . . . . . . . . . . . . . .6
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights . . .7
ARTICLE IV - EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES . . . . . . . .7
SECTION 4.01. Exchange and Transfer of Warrant Certificates. . . . .7
SECTION 4.02. Treatment of Holders of Warrant Certificates. . . . .8
SECTION 4.03. Cancellation of Warrant Certificates . . . . . . . . .8
ARTICLE V - CONCERNING THE WARRANT AGENT . . . . . . . . . . . . . . . . .9
SECTION 5.01. Warrant Agent. . . . . . . . . . . . . . . . . . . . .9
SECTION 5.02. Conditions of Warrant Agent's Obligations. . . . . . .9
SECTION 5.03. Resignation and Appointment of Successor. . . . . . 10
SECTION 5.04. Payment of Taxes . . . . . . . . . . . . . . . . . . 12
ARTICLE VI - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 6.01. Amendment. . . . . . . . . . . . . . . . . . . . . . 12
SECTION 6.02. Notices and Demands to the Company and Warrant Agent 12
SECTION 6.03. Addresses. . . . . . . . . . . . . . . . . . . . . . 12
-i-
<PAGE>
SECTION 6.04. Applicable Law; Construction . . . . . . . . . . . . 12
SECTION 6.05. Delivery of Prospectus.. . . . . . . . . . . . . . . 13
SECTION 6.06. Obtaining of Governmental Approvals. . . . . . . . . 13
SECTION 6.07. Persons Having Rights under Warrant Agreement. . . . 13
SECTION 6.08. Headings . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.09. Counterparts . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.10. Inspection of Agreement. . . . . . . . . . . . . . . 13
[SECTION 6.11. Adjustment of Number of [Preferred Shares]
[Shares of Common Stock]; Notices. . . . . . . . . . 14
SECTION 6.12. Fractional Shares. . . . . . . . . . . . . . . . . . 19
EXHIBIT A Form of Warrant Certificate
-ii-
<PAGE>
WARRANT AGREEMENT
THIS WARRANT AGREEMENT dated as of _____________, ____ between Old
Kent Financial Corporation, a Michigan corporation (the "Company"), and
_____________________, a ______________ organized and existing under the
laws of _________________, as Warrant Agent (the "Warrant Agent").
WHEREAS, the Company proposes to issue and sell from time to time,
either jointly or separately, certain of its (i) senior debt securities
(the "Senior Debt Securities"), and/or (ii) subordinated debt securities
(the "Subordinated Debt Securities" and, together with the Senior Debt
Securities, the "Debt Securities"), and/or (iii) preferred stock, no par
value per share (the "Preferred Shares"), and/or (iv) depositary shares
that represent fractional interest in the Preferred Shares (the "Depositary
Shares"), and/or (v) common stock, par value $1.00 per share ("Common
Stock"), and/or (vi) warrants (the "Warrants") to purchase Debt Securities,
Preferred Shares or Common Stock in one or more offerings on terms
determined at the time of sale; and
WHEREAS, the Company has prepared and filed with the Securities and
Exchange Commission a registration statement on Form S-3 (File No.
________), including a prospectus, relating to the securities described
above and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended (the "1933 Act"); and
[IF SENIOR DEBT SECURITIES - WHEREAS, the Company has entered into an
indenture dated as of ____________, ____ (the "Senior Indenture"), with
_______________________, as trustee (such trustee and any successor, the
"Senior Trustee"), providing for the issuance from time to time of its
Senior Debt Securities to be issued in one or more series as provided in
the Senior Indenture; and]
[IF SUBORDINATED DEBT SECURITIES - WHEREAS, the Company has entered
into an indenture dated as of ____________, _____ (the "Subordinated
Indenture"), with ___________________, as trustee (such trustee and any
successor, the "Subordinated Trustee"), providing for the issuance from
time to time of its Subordinated Debt Securities to be issued in one or
more series as provided in the Subordinated Indenture; and]
[IF PREFERRED SHARES - WHEREAS, the Company has established a series
of Preferred Shares in accordance with the terms of the Certificate of
Designation relating to that series (a "Certificate of Designation"); and]
[IF WARRANTS ATTACHED - WHEREAS, the Company proposes to sell the
[Senior Debt Securities] [Subordinated Debt Securities] [Preferred Shares]
[Common Stock] now being offered (the "Offered Securities") with warrant
certificates evidencing one or more Warrants representing the right to
<PAGE>
purchase the [Senior Debt Securities] [Subordinated Debt Securities]
[Preferred Shares] [Common Stock] purchasable through exercise of the
Warrants (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called
the "Warrant Certificates"; and]
[IF WARRANTS ALONE - WHEREAS, the Company proposes to sell warrant
certificates evidencing one or more Warrants representing the right to
purchase the [Senior Debt Securities] [Subordinated Debt
Securities][Preferred Shares][Common Stock] purchasable through exercise of
Warrants (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called
the "Warrant Certificates"; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, exchange, exercise and replacement of the Warrant Certificates,
and in this Warrant Agreement wishes to set forth, among other things, the
form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained in this Agreement, the parties agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. ISSUANCE OF WARRANTS. [IF OFFERED SECURITIES WITH
WARRANTS ATTACHED] - Warrants shall be [initially] issued in connection
with the issuance of the Offered Securities [but shall be separately
transferable on and after _____, ____ (the "Detachable Date")][and shall
not be separately transferable]. Warrant Certificates shall be [initially]
issued in units with the Offered Securities and each Warrant Certificate
included in such a unit shall evidence ________ Warrants for each [share of
Offered Securities] [$________ principal amount of Offered Securities or
its equivalent in a foreign currency or composite currency] included in
such unit.] [IF WARRANTS ALONE - Upon issuance each Warrant Certificate
shall evidence one or more Warrants.] Each Warrant evidenced by a Warrant
Certificate shall represent the right, subject to the provisions contained
herein and therein, to purchase ________ shares of Warrant Securities.
SECTION 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. (a)
Each Warrant Certificate, whenever issued, shall be in [bearer]
[registered] form substantially in the form set forth in Exhibit A, shall
be dated as of its issue date and may have such letters, numbers or other
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<PAGE>
marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence
of such approval) and as are not inconsistent with the provisions of this
Warrant Agreement, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or regulation of
any stock exchange on which the Warrant Certificates may be listed or
authorized for trading, or to conform to usage. The Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board, the
Chief Executive Officer, President, Chief Financial Officer or Treasurer,
and attested by its Secretary or any of its Assistant Secretaries. Such
signatures may be manual or facsimile signatures of such authorized
officers and may be imprinted or otherwise reproduced on the Warrant
Certificates.
(b) No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant
Certificate has been countersigned by the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company
shall be conclusive evidence that the Warrant Certificate so countersigned
has been duly issued under this Agreement.
(c) In case any officer of the Company who shall have signed any of
the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall
have been countersigned and delivered by the Warrant Agent, such Warrant
Certificates nevertheless may be countersigned and delivered as though the
person who signed such Warrant Certificates had not ceased to be such
officer of the Company, and any Warrant Certificate may be signed on behalf
of the Company by such persons as, at the actual date of the execution of
such Warrant Certificate, shall be the proper officers of the Company,
although at the date of the execution of this Agreement any such person was
not such officer.
(d) Pending the preparation of definitive Warrant Certificates, the
Company may execute, and upon the order of the Company the Warrant Agent
shall authenticate and deliver, temporary Warrant Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced
substantially of the tenor of the definitive Warrant Certificates in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Warrant
Certificates may determine, as evidenced by their execution of such Warrant
Certificates.
(e) If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the
temporary Warrant Certificates shall be exchangeable for definitive Warrant
-3-
<PAGE>
Certificates upon surrender of the temporary Warrant Certificates at the
corporate trust office of the Warrant Agent [or _________], without charge
to the holder. Upon surrender for cancellation of any one or more
temporary Warrant Certificates, the Company shall execute and the Warrant
Agent shall authenticate and deliver in exchange therefor definitive
Warrant Certificates representing the same aggregate number of Warrants.
Until so exchanged, the temporary Warrant Certificates shall in all
respects be entitled to the same benefits under this Warrant Agreement as
definitive Warrant Certificates.
[(f) IF BEARER WARRANTS - The term "holder" or "holder of a Warrant
Certificate" as used in this Agreement shall mean [IF OFFERED SECURITIES
WITH WARRANTS THAT ARE NOT IMMEDIATELY DETACHABLE - , prior to the
Detachable Date, the [bearer] [registered owner] of the Offered Security to
which such Warrant Certificate was initially attached, and after such
Detachable Date] the bearer of such Warrant Certificate.]
[(g) IF REGISTERED WARRANTS - The term "holder" or "holder of a
Warrant Certificate" as used herein shall mean any person in whose name at
the time any Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose [IF OFFERED SECURITIES
WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE - or upon the register
of the Offered Securities prior to the Detachable Date.] The Company will,
or will cause the registrar of the Offered Securities to, make available at
all times to the Warrant Agent such information as to holders of the
Offered Securities with Warrants as may be necessary to keep the Warrant
Agent's records up to date.]
SECTION 1.03. ISSUANCE OF WARRANT CERTIFICATES. Warrant Certificates
evidencing the right to purchase [___ shares of Warrant Securities] [an
aggregate principal amount not exceeding $250,000 of Warrant Securities
(except as provided in Sections 2.03(c), 3.02 and 4.01) may be executed by
the Company and delivered to the Warrant Agent upon the execution of this
Warrant Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf of the
Company, countersign Warrant Certificates evidencing Warrants representing
the right to purchase [____ shares of Warrant Securities] [up to
$___________ aggregate principal amount of Warrant Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the
Warrant Agent shall countersign a Warrant Certificate only if the Warrant
Certificate is issued in exchange or substitution for one or more
previously countersigned Warrant Certificates [IF REGISTERED WARRANTS - or
in connection with their transfer], as hereinafter provided.
-4-
<PAGE>
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. WARRANT PRICE. [On__________, ____] the exercise price
of each Warrant is [$]___________. [During the period from __________,
____ through and including _________, ____, the exercise price of each
Warrant will be [$]________ plus [accreted original issue discount]
[accrued interest] from ______, ____. On _______, ____ the exercise price
of each Warrant will be [$]_________. During the period from ____________,
____ through and including __________, ____, the exercise price of each
Warrant will be [$]_______________ plus [accreted original issue discount]
[accrued interest] from ___________, ____; [in each case the [original
issue discount] [accrued interest] will be [accreted] [computed] at a __%
annual rate, computed on a [semiannual] [annual] basis using a 360-day year
consisting of twelve 30-day months]. Such purchase price of Warrant
Securities (the "Warrant Price") may be denominated in U.S. dollars and may
be determined in reference to an index. [The original issue discount for
each $1,000 principal amount of Warrant Securities is [$_____________.]
SECTION 2.02. DURATION OF WARRANTS. Each Warrant evidenced by a
Warrant Certificate may be exercised in whole at any time, as specified
herein, on or after [the date thereof] [_____________, ____] and at or
before the close of business on _____________, ____ (the "Expiration
Date"). Each Warrant not exercised at or before the close of business on
the Expiration Date shall become void, and all rights of the holder of the
Warrant Certificate evidencing such Warrant and under this Warrant
Agreement shall cease.
SECTION 2.03. EXERCISE OF WARRANTS. (a) During the period specified
in Section 2.02, any whole number of Warrants, if the Warrant Certificate
evidencing the same shall have been countersigned by the Warrant Agent, may
be exercised by providing certain information set forth on the reverse side
of the Warrant Certificate and by paying in full, [in cash or by certified
check or official bank check or by bank wire transfer, in each case,] [by
bank wire transfer] in immediately available funds, the Warrant Price for
each Warrant exercised, to the Warrant Agent at its corporate trust office,
____________________ [or at ________________________,] provided that such
exercise is subject to receipt within five Business Days (as defined in
Section 6.11(f) hereof) of such [payment] [wire transfer] by the Warrant
Agent of the Warrant Certificate with the form of election to purchase
Warrant Securities set forth on the reverse side of the Warrant Certificate
properly completed and duly executed. The date on which payment in full of
the Warrant Price is received by the Warrant Agent shall, subject to
receipt of the Warrant Certificate as aforesaid, be deemed to be the date
on which the Warrant is exercised. The Warrant Agent shall deposit all
funds received by it in payment of the Warrant Price in the account of the
Company maintained with it for such purpose and shall advise the Company by
-5-
<PAGE>
telephone at the end of each day on which a [payment] [wire transfer] for
the exercise of Warrants is received of the amount so deposited to its
account. The Warrant Agent shall promptly confirm such telephonic advice
to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company [and the Senior Trustee under the Senior
Indenture] [and the Subordinated Trustee under the Subordinated Indenture]
of (i) the number of Warrants exercised in accordance with the terms and
conditions of this Warrant Agreement and the Warrant Certificates, (ii) the
instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Securities to which such
holder is entitled upon such exercise, (iii) the delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining
after such exercise, and (iv) such other information as the Company [or the
Senior Trustee] [or the Subordinated Trustee] shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant or
Warrants, the Company shall issue[, pursuant to the [Senior Indenture]
[Subordinated Indenture]], in authorized denominations to or upon the order
of the holder of the Warrant Certificate evidencing such Warrant or
Warrants,] the Warrant Security or Warrant Securities to which such holder
is entitled, in fully registered form, registered in such name or names as
may be directed by such holder; and, if fewer than all of the Warrants
evidenced by such Warrant Certificate are exercised, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver to or upon the order of such holder, a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax
or other governmental charge required to be paid in connection with any
transfer involved in the issue of the Warrant Securities; and in the event
that any such transfer is involved, the Company shall not be required to
issue or deliver any Warrant Securities until such tax or other charge
shall have been paid or it has been established to the Company's
satisfaction that no such tax or other charge is due.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. NO RIGHTS AS WARRANT SECURITYHOLDERS CONFERRED BY
WARRANTS OR WARRANT CERTIFICATES. No Warrant Certificate or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of
a holder of the Warrant Securities, including the right [to vote or] to
receive payments of [dividends or distributions of any kind] [principal of
-6-
<PAGE>
(and premium, if any,) or interest, if any, on the Warrant Securities or to
enforce any of the covenants in the [Senior Indenture] [Subordinated
Indenture].
SECTION 3.02. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT
CERTIFICATES. Upon receipt by the Company and the Warrant Agent of
evidence reasonably satisfactory to them of the ownership of and the loss,
theft, destruction or mutilation of any Warrant Certificate and of
indemnity reasonably satisfactory to them and, in the case of mutilation,
upon surrender thereof to the Warrant Agent for cancellation, then, in the
absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a BONA FIDE purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of
the same tenor and evidencing a like number of Warrants. Upon the issuance
of any new Warrant Certificate under this Section, the Company may require
the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered
pursuant to this Section in lieu of any lost, stolen or destroyed Warrant
Certificate shall represent an additional contractual obligation of the
Company, whether or not the lost, stolen or destroyed Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to the
benefits of this Warrant Agreement equally and proportionately with any and
all other Warrant Certificates duly executed and delivered hereunder. The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of
mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 3.03. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Warrant Agreement, any holder
of a Warrant Certificate, without the consent of the Warrant Agent, [the
[Senior] [Subordinated] Trustee,] the holder of any Warrant Securities or
the holder of any other Warrant Certificate, may, in his own behalf and for
his own benefit, enforce, and may institute and maintain any suit, action
or proceeding against the Company suitable to enforce, or otherwise in
respect of, his right to exercise the Warrant or Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and
in this Warrant Agreement.
-7-
<PAGE>
ARTICLE IV
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
SECTION 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. [IF
OFFERED SECURITIES WITH WARRANTS THAT ARE IMMEDIATELY DETACHABLE OR
WARRANTS ALONE - Upon] [IF OFFERED SECURITIES WITH WARRANTS THAT ARE NOT
IMMEDIATELY DETACHABLE - Prior to the Detachable Date, a Warrant
Certificate may be exchanged or transferred only together with the Offered
Security to which the Warrant Certificate was initially attached, and only
for the purposes of effecting or in conjunction with an exchange or
transfer of such Offered Security. On or prior to the Detachable Date,
each transfer of the Offered Security on the register of the Offered
Securities shall operate also to transfer the related Warrant Certificates.
After the Detachable Date upon] surrender at the corporate trust office of
the Warrant Agent or [__________], Warrant Certificates may be exchanged
for other Warrant Certificates in denominations evidencing Warrants, each
Warrant entitling the holder thereof to purchase [_____ shares of Warrant
Securities] [$_____________ principal amount of Warrant Securities or its
equivalent in a foreign currency or composite currency] at the Warrant
Price [IF REGISTERED WARRANTS - or may be transferred in whole or in part]
[IF BEARER OR REGISTERED WARRANTS - provided that such other Warrant
Certificates evidence the same aggregate number of Warrants as the Warrant
Certificates so surrendered.] [IF REGISTERED WARRANTS - The Warrant Agent
shall keep, at its corporate trust office [or at __________], books in
which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates in accordance with Section 1.02 and transfers
of outstanding Warrant Certificates, upon surrender of the Warrant
Certificates to the Warrant Agent at its corporate trust office [or at
______] for transfer, properly endorsed or accompanied by appropriate
instruments of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent.] No service charge shall
be made for any exchange or transfer of Warrant Certificates, but the
Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any
such exchange or transfer. Whenever any Warrant Certificates are so
surrendered for exchange or transfer an authorized officer of the Warrant
Agent shall countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or transfer that will result in the
issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant
Certificates issued upon any exchange or transfer of Warrant Certificates
shall be the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this Warrant
Agreement, as the Warrant Certificates surrendered for such exchange or
transfer.
-8-
<PAGE>
SECTION 4.02. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. [IF
OFFERED SECURITIES WITH BEARER WARRANTS THAT ARE NOT IMMEDIATELY DETACHABLE
- - Subject to Section 4.01, each] [IF OFFERED SECURITIES WITH BEARER
WARRANTS THAT ARE IMMEDIATELY DETACHABLE OR BEARER WARRANTS ALONE - Each]
Warrant Certificate shall be transferable by delivery and shall be deemed
negotiable and the bearer of each Warrant Certificate may be treated by the
Company, the Warrant Agent and all other persons dealing with such bearer
as the absolute owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any
notice to the contrary notwithstanding.] [IF REGISTERED WARRANTS ALONE OR
REGISTERED WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE - Every holder of
a Warrant Certificate, by accepting the same, consents and agrees with the
Company, the Warrant Agent and with every subsequent holder of such Warrant
Certificate that until the Warrant Certificate is transferred on the books
of the Warrant Agent [or the register of the Offered Securities prior to
the Detachable Date], the Company and the Warrant Agent may treat the
registered holder as the absolute owner thereof for any purpose and as the
person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.]
SECTION 4.03. CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exchange, transfer or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent, and all Warrant Certificates surrendered or so delivered to
the Warrant Agent shall be promptly cancelled by the Warrant Agent and
shall not be reissued and, except as expressly permitted by this Warrant
Agreement, no Warrant Certificate shall be issued hereunder in exchange or
in lieu thereof. The Warrant Agent shall deliver to the Company from time
to time or otherwise dispose of cancelled Warrant Certificates in a manner
satisfactory to the Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. WARRANT AGENT. The Company hereby appoints
___________________ as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth, and ____________ hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted
to and conferred upon it in the Warrant Certificates and hereby and such
further powers and authority to act on behalf of the Company as the Company
may hereafter grant to or confer upon it. All of the terms and provisions
with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions
hereof.
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SECTION 5.02. CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant
Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company
agrees and to all of which the rights hereunder of the holders from time to
time of the Warrant Certificates shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees to pay the
Warrant Agent promptly the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out-of-pocket expenses (including reasonable counsel
fees) incurred by the Warrant Agent in connection with the services
rendered hereunder by the Warrant Agent. The Company also agrees to
indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability, or expense incurred without negligence or bad faith on the part
of the Warrant Agent, arising out of or in connection with its acting as
such Warrant Agent hereunder, as well as the costs and expenses of
defending against any claim or liability in the premises.
(b) AGENT FOR THE COMPANY. In acting under this Warrant Agreement
and in connection with the Warrants, the Warrant Agent is acting solely as
agent of the Company and does not assume any obligation or relationship of
agency or trust with any of the owners or holders of the Warrants.
(c) DOCUMENTS. The Warrant Agent shall be protected and shall incur
no liability for or in respect of any action taken or thing suffered by it
in reliance upon any Warrant Certificates, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(d) CERTAIN TRANSACTIONS. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest
in, any Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary,
trustee or agent for, any committee or body of holders of Warrant
Securities or other obligations of the Company as freely as if it were not
the Warrant Agent hereunder. [Nothing in this Warrant Agreement shall be
deemed to prevent the Warrant Agent from acting as [Senior] [Subordinated]
Trustee under the [Senior] [Subordinated] Indenture.]
(e) NO LIABILITY FOR INTEREST. The Warrant Agent shall not be under
any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Warrant Agreement or of the
Warrants.
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(f) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall not incur
any liability with respect to the validity of any of the Warrants.
(g) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent shall
not be responsible for any of the recitals or representations herein or in
the Warrant Certificates contained (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
(h) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be obligated to
perform such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read
into this Agreement or the Warrant Certificates against the Warrant Agent.
The Warrant Agent shall not be under any obligation to take any action
under this Agreement that may tend to involve it in any expense or
liability, the payment of which within a reasonable time is not, in its
reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company
of any of the Warrant Certificates authenticated by the Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or agreements
contained herein or in the Warrant Certificates or in the case of the
receipt of any written demand from a holder of a Warrant Certificate with
respect to such default, including any duty or responsibility to initiate
or attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 6.02 hereof, to make any demand upon the Company.
SECTION 5.03. RESIGNATION AND APPOINTMENT OF SUCCESSOR. (a) The
Company agrees, for the benefit of the holders from time to time of the
Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the
date on which its desired resignation will become effective; PROVIDED that
such date shall not be less than three months after the date on which such
notice is given unless the Company agrees to accept less notice. The
Warrant Agent hereunder may be removed at any time by the filing with it of
an instrument in writing signed by or on behalf of the Company and
specifying such removal and the date when it shall become effective. Such
resignation or removal shall take effect upon the appointment by the
Company, as hereinafter provided, of a successor Warrant Agent (which shall
be a bank or trust company authorized under the laws of the jurisdiction of
its organization to exercise corporate trust powers) and the acceptance of
such appointment by such successor Warrant Agent. The obligations of the
Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
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(c) In case at any time the Warrant Agent shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or shall file a
petition seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or under any other applicable Federal or
State bankruptcy law or similar law or make an assignment for the benefit
of its creditors or consent to the appointment of a receiver or custodian
of all or any substantial part of its property or assets, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a
receiver or custodian of it or of all or any substantial part of its
property or assets shall be appointed, or if an order of any court shall be
entered for relief against it under the provisions of Title 11 of the
United States Code, as now constituted or hereafter amended, or under any
other applicable Federal or State bankruptcy or similar law, or if any
public officer shall have taken charge or control of the Warrant Agent or
of its property or affairs, for the purpose of rehabilitation, conservation
or liquidation, it shall be disqualified from serving as Warrant Agent and
a successor Warrant Agent, qualified as aforesaid, shall be appointed by
the Company by an instrument in writing, filed with the successor Warrant
Agent. Upon the appointment as aforesaid of a successor Warrant Agent and
acceptance by the successor Warrant Agent of such appointment, the Warrant
Agent so disqualified shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without further act, deed or conveyance, shall become vested with
all authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named as Warrant
Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer,
deliver and pay over, and such successor Warrant Agent shall be entitled to
receive, all monies, securities and other property on deposit with or held
by such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any
corporation to which the Warrant Agent shall sell or otherwise transfer all
or substantially all the assets and business of the Warrant Agent, provided
that it shall be qualified as aforesaid, shall be the successor Warrant
Agent under this Warrant Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
SECTION 5.04. PAYMENT OF TAXES. The Company will pay all stamp and
other duties, if any, to which, under the laws of the United States of
America, this Warrant Agreement or the original issuance of the Warrant
Certificates may be subject.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.01. AMENDMENT. This Warrant Agreement may be amended by
the parties hereto, without the consent of the holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein, or
making any other provisions with respect to matters or questions arising
under this Warrant Agreement as the Company and the Warrant Agent may deem
necessary or desirable; PROVIDED that such action shall not adversely
affect the interests of the holders of the Warrant Certificates.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT.
If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions
of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice of demand to the Company.
SECTION 6.03. ADDRESSES. Any communications from the Company to the
Warrant Agent with respect to this Warrant Agreement shall be addressed
to____________________, Attention: ____________, and any communications
from the Warrant Agent to the Company with respect to this Warrant
Agreement shall be addressed to Old Kent Financial Corporation, 111 Lyon
Street N.W., Grand Rapids, Michigan 49503, Attention: Secretary (or such
other address as shall be specified in writing by the Warrant Agent or by
the Company).
SECTION 6.04. APPLICABLE LAW; CONSTRUCTION. The validity,
interpretation and performance of this Warrant Agreement and each Warrant
Certificate issued hereunder and of the respective terms and provisions
thereof shall be governed by the laws of the State of [________________].
Whenever used herein, the term "including" shall mean "including but not
limited to," unless expressly provided otherwise.
SECTION 6.05. DELIVERY OF PROSPECTUS. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and
the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant
Agent will deliver to the holder of the Warrant Certificate evidencing such
Warrant, prior to or concurrently with the delivery of the Warrant
Securities issued upon such exercise, a Prospectus.
SECTION 6.06. OBTAINING OF GOVERNMENTAL APPROVALS. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
Federal and State laws (including maintenance of the effectiveness of a
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registration statement in respect of the Warrants and Warrant Securities
under the 1933 Act), that may be or become requisite in connection with the
issuance, sale, transfer, and delivery of the Warrant Certificates, the
exercise of the Warrants, the issuance, sale, transfer and delivery of the
Warrant Securities issued upon exercise of the Warrants or upon the
expiration of the period during which the Warrants are exercisable.
SECTION 6.07. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing
in this Warrant Agreement expressed or implied and nothing that may be
inferred from any of the provisions hereof is intended, or shall be
construed, to confer upon, or give to, any person or corporation other than
the Company, the Warrant Agent and the holders of the Warrant Certificates
any right, remedy or claim under or by reason of this Warrant Agreement or
of any covenant, condition, stipulation, promise or agreement hereof. All
covenants, conditions, stipulations, promises and agreements in this
Warrant Agreement contained shall be for the sole and exclusive benefit of
the Company and the Warrant Agent and their successors and of the holders
of the Warrant Certificates.
SECTION 6.08. HEADINGS. The descriptive headings of the several
Articles and Sections of this Warrant Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
SECTION 6.09. COUNTERPARTS. This Warrant Agreement may be executed
in any number of counterparts, each of which so executed shall be deemed to
be an original; but such counterparts shall together constitute but one and
the same instrument.
SECTION 6.10. INSPECTION OF AGREEMENT. A copy of this Warrant
Agreement shall be available at all reasonable times at the principal
corporate trust office of the Warrant Agent for inspection by the holder of
any Warrant Certificate. The Warrant Agent may require such holder to
submit his or her Warrant Certificate for inspection by it.
[SECTION 6.11. ADJUSTMENT OF NUMBER OF [PREFERRED SHARES] [SHARES OF
COMMON STOCK]; NOTICES. The number of [Preferred Shares] [shares of Common
Stock] purchasable upon the exercise of each Warrant (the "Exercise Rate")
is subject to adjustment from time to time as provided in this Section.
(a) DIVIDENDS OR DISTRIBUTIONS IN [PREFERRED SHARES] [SHARES OF
COMMON STOCK]. In case the Company shall pay or make a dividend or other
distribution on [any class or series of Preferred Shares for which Warrants
may be exercised] [its Common Stock] in [such Preferred Shares] [shares of
its Common Stock], the Exercise Rate in effect at the opening of business
on the day following the date fixed for the determination of shareholders
entitled to receive such dividend or other distribution shall be increased
by dividing such Exercise Rate by a fraction of which the numerator shall
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be the number of [such Preferred Shares] [shares of such Common Stock]
outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares
and the total number of shares constituting such dividend or other
distribution, such increase to become effective immediately after the
opening of business on the day following the date fixed for such
determination. [For the purposes of this paragraph (a), the number of
[Preferred Shares] [shares of Common Stock] at any time outstanding shall
not include shares held in the treasury of the Company. The Company will
not pay any dividend or make any distribution on [Preferred Shares] [shares
of Common Stock] held in the treasury of the Company.]
(b) RIGHTS OR WARRANTS. In case the Company shall issue rights or
warrants to all holders of [a class or series of its Preferred Shares for
which Warrants may be exercised] [shares of its Common Stock] entitling
them to subscribe for or purchase [such Preferred Shares] [shares of Common
Stock] at a price per share less than the current market price per share
(determined as provided in paragraph (f) of this Section) of [such
Preferred Shares] [Common Stock] on the date fixed for the determination of
shareholders entitled to receive such rights or warrants, the Exercise Rate
in effect at the opening of business on the day following the date fixed
for such determination shall be increased by dividing such Exercise Rate by
a fraction of which the numerator shall be the number of [such Preferred
Shares] [shares of Common Stock] outstanding at the close of business on
the date fixed for such determination plus the number of [such Preferred
Shares] [shares of Common Stock] which the aggregate of the offering price
of the total number of [such Preferred Shares] [shares of Common Stock] so
offered for subscription or purchase would purchase at such current market
price and the denominator shall be the number of [such Preferred Shares]
[shares of Common Stock] outstanding at the close of business on the date
fixed for such determination plus the number of [such Preferred Shares]
[shares of Common Stock] so offered for subscription or purchase, such
increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. [For the purposes
of this paragraph (b), the number of [Preferred Shares] [shares of Common
Stock] at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of [Preferred Shares]
[shares of Common Stock]. The Company will not issue any rights or
warrants in respect of [Preferred Shares] [shares of Common Stock] held in
the treasury of the Company.]
(c) SUBDIVISION OR COMBINATION. In case outstanding shares of [a
class or series of its Preferred Shares for which Warrants are exercisable]
[Common Stock] shall be subdivided into a greater number of shares of [such
Preferred Shares] [Common Stock], the Exercise Rate in effect at the
opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately increased, and,
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conversely, in case outstanding shares of [a class or series of its
Preferred Shares for which Warrants are exercisable] [Common Stock] shall
each be combined into a smaller number of shares of [such Preferred Shares]
[Common Stock], the Exercise Rate in effect at the opening of business on
the day following the day upon which such combination becomes effective
shall be proportionately reduced, such increase or reduction, as the case
may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination
becomes effective.
(d) DIVIDEND OR DISTRIBUTION OF ASSETS. In case the Company shall,
by dividend or otherwise, distribute to all holders of [a class or series
of its Preferred Shares for which Warrants are exercisable] [shares of its
Common Stock] evidences of its indebtedness or assets (including
securities, but excluding any rights or warrants referred to in paragraph
(b) of this Section, any dividend or distribution paid in cash and any
dividend or distribution referred to in paragraph (a) of this Section), the
Exercise Rate shall be adjusted so that the same shall equal the price
determined by dividing the Exercise Rate in effect immediately prior to the
close of business on the date fixed for the determination of shareholders
entitled to receive such distribution by a fraction of which the numerator
shall be the current market price per share (determined as provided in
paragraph (f) of this Section) of [such Preferred Shares] [Common Stock] on
the date fixed for such determination less the then fair-market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution filed with the Warrant Agent
and any other Registrar) of the portion of the assets or evidences of
indebtedness so distributed applicable to one share of [such Preferred
Shares] [Common Stock] and the denominator shall be such current market
price per share of [such Preferred Shares] [Common Stock], such adjustment
to become effective immediately prior to the opening of business on the day
following the date fixed for the determination of shareholders entitled to
receive such distribution.
(e) RECLASSIFICATION. The reclassification of [a class or series of
its Preferred Shares for which Warrants are exercisable] [the Company's
Common Stock] into securities other than such [Preferred Shares] [Common
Stock] (other than any reclassification upon a consolidation or merger to
which paragraph (l) of this Section applies) shall be deemed to involve
(i) a distribution of such securities other than such [Preferred Shares]
[Common Stock] to all holders of [such Preferred Shares] [Common Stock]
(and the effective date of such reclassification shall be deemed to be "the
date fixed for the determination of shareholders entitled to receive such
distribution" and "the date fixed for such determination" within the
meaning of paragraph (d) of this Section), and (ii) a subdivision or
combination, as the case may be, of the number of shares of [such Preferred
Shares] [Common Stock] outstanding immediately prior to such
reclassification into the number of shares of [such Preferred Shares]
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[Common Stock] outstanding immediately thereafter (and the effective date
of such reclassification shall be deemed to be "the day upon which such
subdivision becomes effective" or "the day upon which such combination
becomes effective", as the case may be, and "the day upon which such
subdivision or combination becomes effective" within the meaning of
paragraph (c) of this Section).
(f) CURRENT MARKET PRICE. For the purpose of any computation under
paragraphs (b) and (d) of this Section, the current market price per share
of [Preferred Shares] [Common Stock] on any date shall be deemed to be the
average of the daily closing prices for the 15 consecutive Business Days
selected by the Company commencing not less than 20 nor more than 30
Business Days before the day in question. The closing price for each day
shall be the last reported sales price regular way or, in case no such
reported sale takes place on such day, the average of the reported closing
bid and asked prices regular way, in either case on the New York Stock
Exchange or, if such [Preferred Shares are] [Common Stock is] not listed or
admitted to trading on such Exchange, on the principal national securities
exchange on which such [Preferred Shares are] [Common Stock is] listed or
admitted to trading or, if not listed or admitted to trading on any
national securities exchange, on the National Association of Securities
Dealers Automated Quotations National Market System or, if such [Preferred
Shares are] [Common Stock is] not listed or admitted to trading on any
national securities exchange or quoted on such National Market System, the
average of the closing bid and asked prices in the over-the-counter market
as furnished by any New York Stock Exchange member firm selected from time
to time by the Company for the purpose. In the event that no such market
trading exists, the current market price will be determined by three
independent nationally reorganized investment banking firms selected by the
Company in such manner as the Board of Directors deems appropriate.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions where Warrants may be
surrendered for exercise or in Grand Rapids, Michigan, are authorized or
obligated by law or executive order to close.
(g) ADJUSTMENTS FOR TAX PURPOSES. The Company may make such
adjustments in the Exercise Rate, in addition to those required by
paragraphs (a), (b), (c) and (d) of this Section, as it considers to be
advisable in order that any event treated for Federal income tax purposes
as a dividend of stock or stock rights shall not be taxable to the
recipients.
(h) NO ADJUSTMENT BELOW PAR VALUE. Notwithstanding the provisions of
this Section, the Exercise Rate shall not be increased such that the price
paid per share would be less than the par value thereof as a result of any
adjustment made hereunder unless, under applicable law then in effect,
Warrants may be exercised, at such lower Exercise Rate, for legally issued,
fully paid and nonassessable [Preferred Shares] [shares of Common Stock].
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(i) PERMITTED DISTRIBUTIONS. The granting of the right to purchase
shares of [Preferred Shares] [Common Stock], pursuant to (i) any dividend
or interest reinvestment plan or [Preferred Shares] [Common Stock] purchase
plan providing for the reinvestment of dividends or interest payable on
securities of the Company and/or the investment of periodic optional
payments, and (ii) any stock option plans and/or employee benefit or
similar plans, shall not be deemed to constitute an issue of rights or
warrants by the Company.
(j) NO ADJUSTMENTS NECESSARY. No adjustment in the Exercise Rate
shall be required unless such adjustment would require an increase or
decrease of at least one percent in such Exercise Rate, PROVIDED, HOWEVER,
that any adjustment that by reason of this paragraph (j) is not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section shall be made to the
nearest cent or to the nearest 1/100 of a share, as the case may be.
(k) NOTICE OF ADJUSTMENT. Whenever the Exercise Rate is adjusted as
herein provided, the Company shall promptly (i) compute the adjusted
Exercise Rate in accordance herewith and prepare a certificate signed by an
officer of the Company setting forth the adjusted Exercise Rate and showing
in reasonable detail the facts upon which such adjustment is based, and
such certificate shall promptly be filed with the Warrant Agent and any
other Registrar and (ii) cause a notice stating that such adjustment has
been effected and the adjusted Exercise Rate to be mailed to the holders of
Warrants at their last addresses as they shall appear on the Warrant
Register.
(l) SUCCESSOR COMPANY. In case of any reclassification or change of
outstanding shares of [the class or series of Preferred Shares issuable
upon exercise of the Warrants] [Common Stock] (other than a change in par
value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination), or in case of any
merger or consolidation of the Company with one or more other corporations
(other than a merger or consolidation in which the Company is the
continuing corporation and which does not result in any reclassification or
change of outstanding shares of [the class or series of Preferred Shares
issuable upon exercise of the Warrants] [Common Stock]), or in case of the
merger of the Company into another corporation, or in case of any sale or
conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety, the holder of Warrants of each
series then outstanding shall have the right to exercise such Warrant for
the kind and amount of shares of capital stock or other securities and
property, including cash, receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a holder of the number of
shares of [such class or series of Preferred Shares] [Common Stock] for
which such Warrant might have been exercised immediately prior to such
reclassification, change consolidation, merger, sale or conveyance. In any
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such case, the Company, or such successor or purchasing corporation, as the
case may be, shall execute and deliver to the Warrant Agent a supplemental
Warrant Agreement containing provisions to the effect set forth above and
providing further for adjustments that shall be as nearly equivalent as may
be practicable to the adjustments provided for in this Section. The above
provisions shall similarly apply to successive reclassifications, changes,
consolidation, mergers, sales and conveyances.
(m) COMPANY TO RESERVE CAPITAL SECURITIES. The Company shall at all
times reserve and keep available out of the aggregate of its authorized but
unissued shares for the purpose of effecting the exercise of the Warrants,
such full number of its duly authorized shares of [Preferred Shares]
[Common Stock] as shall from time to time be sufficient to effect the
exercise of all outstanding Warrants.
If any shares of [Preferred Shares] [Common Stock] reserved or to be
reserved for the purpose of exercise of Warrants hereunder require
registration with or approval of any governmental authority under any
Federal or State law before such shares may be validly delivered upon
exercise, then the Company covenants that it will in good faith and as
expeditiously as reasonably practicable endeavor to secure registration or
approval, as the case may be.
The Company covenants that all shares of [Preferred Shares] [Common
Stock] which may be delivered upon exercise of Warrants shall upon delivery
be fully paid and nonassessable by the Company, subject to Michigan
Compiled Laws Section 450.1551, and, except for taxes in connection with
the exercise of the Warrants, free from all taxes, liens and charges with
respect to the issue or delivery thereof.
(n) COMPANY TO GIVE NOTICE OF CERTAIN EVENTS. In the event:
(1) that the Company shall pay any dividend or make any
distribution to the holders of shares of [Preferred Shares issuable
upon exercise of the Warrants] [Common Stock] otherwise than in cash
charged against consolidated net earnings or retained earnings of the
Company and its consolidated subsidiaries or in [such Preferred
Shares] [shares of Common Stock]; or
(2) that the Company shall offer for subscription or purchase,
PRO RATA, to the holders of [Preferred Shares issuable upon exercise
of the Warrants] [Common Stock] any additional shares of stock of any
class or any securities exercisable for or exchangeable for stock of
any class; or
(3) of any reclassification or change of outstanding shares of
[the class or series of Preferred Shares issuable upon the exercise of
the Warrants] [Common Stock] (other than a change in par value, or
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from par value to no par value, or from no par combination), or of
any merger of consolidation of the Company with, or merger of the
Company into, another corporation (other than a merger or
consolidation in which the Company is the continuing corporation and
which does not result in reclassification or change of outstanding
shares of [Preferred Shares issuable upon exercise of the Warrants]
[Common Stock]), or of any sale or conveyance to another corporation
of the property of the Company as an entirety or substantially as an
entirety; or
(4) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
then, and in any one or more of such events, the Company will file with the
Warrant Agent and any other Registrar written notice thereof at least
twenty days (or ten days in any case specified in clause (1) or (2) above)
prior to (i) the record date fixed with respect to any of the events
specified in (1) and (2) above and (ii) the effective date of any of the
events specified in (3) above; and shall mail promptly after providing such
notice to the Warrant Agent or such other Registrar a copy of such notice
to the holders thereof at their last addresses as they shall appear upon
the Warrant Register. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.
(o) COMPANY DETERMINATION FINAL. Any determination that the Company
or the Board of Directors must make pursuant to this Section is conclusive.
(p) WARRANT AGENT'S ADJUSTMENT DISCLAIMER. The Warrant Agent has no
duty to determine when an adjustment under this Section should be made, how
it should be made or what it should be. The Warrant Agent has no duty to
determine whether a supplemental warrant agreement under paragraph (l) need
be entered into or whether any provisions of any supplemental warrant
agreement are correct. The Warrant Agent shall not be accountable for and
makes no representation as to the validity or value of any securities or
assets issued upon exercise of Warrants. The Warrant Agent shall not be
responsible for the Company's failure to comply with this Section.
(q) ADJUSTMENTS AND WARRANT CERTIFICATES. Irrespective of any
adjustments in the number or kind of shares purchasable upon the exercise
of the Warrants, Warrant Certificates theretofore or thereafter issued may
continue to express the same number and kind of shares per Warrant as are
stated on the Warrant Certificates initially issuable pursuant to this
Agreement.
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(r) SUBSEQUENT EVENT. After an adjustment to the Exercise Rate under
this Section, any subsequent event requiring an adjustment under this
Section shall cause an adjustment to the Exercise Rate as so adjusted.
SECTION 6.12. FRACTIONAL SHARES. The Company shall not be required
to deliver fractions of shares of [Preferred Shares] [Common Stock] upon
exercises of Warrants. If more than one Warrant shall be surrendered for
exercise at one time by the same holder, the number of full shares which
shall be deliverable upon exercise thereof shall be computed on the basis
of the aggregate of the Warrants so surrendered instead of any fractional
share of [Preferred Shares] [Common Stock] that would otherwise be issuable
upon exercise of any Warrant or Warrants (or specified portions thereof).
The Company shall pay a cash adjustment in respect of such fraction in an
amount equal to the same fraction of the market price per share of
[Preferred Shares] [Common Stock] (as determined in accordance with Section
6.11(f) or in any other manner prescribed by the Board of Directors) at the
close of business on the last Business Day prior to the Date of Exercise.]
[The remainder of this page intentionally blank.]
-21-
<PAGE>
IN WITNESS WHEREOF, Old Kent Financial Corporation has caused this
Warrant Agreement to be signed by one of its duly authorized officers and
the same to be attested by its Secretary or one of its Assistant
Secretaries; and ___________________ has caused this Warrant Agreement to
be signed by one of its duly authorized officers and the same to be
attested by its Secretary or one of its Assistant Secretaries, all as of
the day and year first written above.
OLD KENT FINANCIAL CORPORATION
By
Attest:
_________________________
[Warrant Agent]
By
Attest:
________________________
-22-
<PAGE>
EXHIBIT A
(Form of Warrant Certificate)
[Front Face of Warrant Certificate]
[Form of Legend if Prior to ______ this
Offered Securities Warrant cannot be
with Warrants that transferred or exchanged
are not immediately unless attached to a
detachable:
exercisable: [Title of Offered
Securities].]
[Form of Legend if Prior to ________ this
Warrants are not Warrant cannot be
immediately exercisable: exercised in whole or in part.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
OLD KENT FINANCIAL CORPORATION
PURCHASE WARRANT
FOR [Title of Warrant Securities]
VOID AFTER THE CLOSE OF BUSINESS IN GRAND RAPIDS, MICHIGAN ON
___________, ____.
[No.] Warrants
This certifies that [the bearer is the] [__________ or registered
assigns is the registered] owner of the above indicated number of Warrants,
each Warrant entitling such [bearer] [owner] to purchase, at any time
[after the close of business on ___________, ____ and] [on or before the
close of business on ____________, ____], [$]__________ [principal amount]
[shares] of [Title of Warrant Securities] (the "Warrant Securities") of Old
Kent Financial Corporation (the "Company"), issued and to be issued [under
the Indenture (as defined below)] [by the Company], on the following basis:
[on __________, ____,] the exercise price of each Warrant is
[$_______________, [during the period from _________, ____, through and
including ___________, ____, the exercise price of each Warrant will be
[$]___________ plus [accreted original issue discount] [accrued interest]
from __________, ____, on ______________, ____, the exercise price of each
Warrant will be [$]__________, during the period from __________, ____,
through and including _____________, ____, the exercise price of each
Warrant will be [$]________ plus [accreted original issue discount]
<PAGE>
[accrued interest] from __________, ____, [in each case, the [original
issue discount] [accrued interest] will be accreted at a _ % annual rate,
computed on a [semiannual] [annual] basis, using a 360-day year consisting
of twelve 30-day months] (the "Warrant Price")]. [The original issue
discount for each [$]_________ principal amount of Warrant Securities is
[$]__________]. The [bearer] [owner] may exercise the Warrants evidenced
hereby by providing certain information set forth on the back of this
Warrant Certificate and by paying in full, in lawful money of _______, [in
cash or by certified check or official bank check or by bank wire transfer,
in each case,] [by bank wire transfer] in immediately available funds, the
Warrant Price for each Warrant exercised to the Warrant Agent (as
hereinafter defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate trust
office of [name of Warrant Agent] or its successor as warrant agent (the
"Warrant Agent"), currently at the address specified on the back of this
Warrant Certificate [or __________,] and upon compliance with and subject
to the conditions set forth herein and in the Warrant Agreement (as
hereinafter defined).
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form in
[denominations of [$]___________ and any integral multiples thereof] [any
number of whole shares]. Upon any exercise of fewer than all of the
Warrants evidenced by this Warrant Certificate, there shall be issued to
the [registered owner] [bearer] hereof a new Warrant Certificate evidencing
the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _____________, ____ (the "Warrant
Agreement"), between the Company and the Warrant Agent and is subject to
the terms and provisions contained in the Warrant Agreement, to all of
which terms and provisions the [registered owner] [bearer] of this Warrant
Certificate consents by acceptance hereof. Copies of the Warrant Agreement
are on file at the above-mentioned office of the Warrant Agent [and at
_________________].
[The Warrant Securities to be issued ___________, ____ and delivered
upon the exercise of the Warrants evidenced by this Warrant Certificate
will be issued [by the Company pursuant to the Certificate of Designation
applicable to such Warrant Securities] [under and in accordance with a
[Senior] [Subordinated] Indenture dated as of ___________, ____ (the
"Indenture"), between the Company and _____________________, as trustee
(such trustee, and any successor to such trustee to be herein called the
[Senior] [Subordinated] "Trustee") and will be subject to the terms and
provisions contained in the Indenture. Copies of the Indenture, including
the form of the Warrant Securities, are on file at the corporate trust
office of the Trustee [and at ________________].]
-2-
<PAGE>
[IF OFFERED SECURITIES WITH BEARER WARRANTS THAT ARE NOT IMMEDIATELY
DETACHABLE - Prior to ________, ____ this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered
Securities] ("Offered Securities") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security. After
such date, this Warrant Certificate, and all rights hereunder, may be
transferred by delivery and the Company and the Warrant Agent may treat the
bearer hereof as the owner for all purposes.]
[IF OFFERED SECURITIES WITH BEARER WARRANTS THAT ARE IMMEDIATELY
DETACHABLE OR BEARER WARRANTS ALONE - This Warrant Certificate, and all
rights hereunder, may be transferred by delivery and the Company and the
Warrant Agent may treat the bearer hereof as the owner for all purposes.
[IF OFFERED SECURITIES WITH REGISTERED WARRANTS THAT ARE NOT
IMMEDIATELY DETACHABLE - Prior to __________, ____ this Warrant Certificate
may be exchanged or transferred only together with the [Title of Offered
Securities] ("Offered Securities") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security. After
such date, this [IF OFFERED SECURITIES WITH REGISTERED WARRANTS THAT ARE
IMMEDIATELY DETACHABLE OR REGISTERED WARRANTS ALONE - This] Warrant
Certificate may be transferred when surrendered at the corporate trust
office of the Warrant Agent [or ____________] by the registered owner or
his assigns, in person or by an attorney duly authorized in writing, in the
manner and subject to the limitations provided in the Warrant Agreement.]
[IF OFFERED SECURITIES WITH WARRANTS THAT ARE NOT IMMEDIATELY
DETACHABLE - Except as provided in the immediately preceding paragraph,
after] [IF OFFERED SECURITIES WITH WARRANTS THAT ARE IMMEDIATELY DETACHABLE
OR WARRANTS ALONE - After] countersignature by the Warrant Agent and prior
to the expiration of this Warrant Certificate, this Warrant Certificate may
be exchanged at the corporate trust office of the Warrant Agent for Warrant
Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the [registered owner]
[bearer] hereof to any of the rights of a registered owner of the Warrant
Securities, including, without limitation, the right [to vote or] to
receive payments of [dividends or distributions of any kind] [principal of
(and premium, if any) or interest, if any, on the Warrant Securities or to
enforce any of the covenants of the Indenture.]
-3-
<PAGE>
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of __________, ____
OLD KENT FINANCIAL CORPORATION
By
Attest:
[Secretary] [Assistant Secretary]
Countersigned:
As Warrant Agent
By
Authorized Signatory
-4-
<PAGE>
EXHIBIT 5.1
[Warner Norcross & Judd LLP letterhead]
August 14, 1998
Old Kent Financial Corporation
111 Lyon Street NW
Grand Rapids, Michigan 49503
Re: REGISTRATION STATEMENT ON FORM S-3 FILED ON AUGUST 11,
1998 WITH RESPECT TO AN AGGREGATE OF $250,000,000 OF
DEBT SECURITIES, PREFERRED STOCK, DEPOSITARY SHARES,
AND COMMON STOCK
Ladies and Gentlemen:
We are general counsel to Old Kent Financial Corporation, a
Michigan corporation (the "Company"), and in such capacity, we have
represented the Company in connection with the registration by the Company
of (A) up to an aggregate of $250,000,000 of its (i) unsecured debt
securities (the "Debt Securities"), which Debt Securities may be either
senior or subordinated, (ii) shares of its preferred stock (the "Preferred
Stock"), which Preferred Stock may be represented by depositary shares (the
"Depositary Shares"), and (iii) shares of its common stock (the "Common
Stock" and, together with the Debt Securities, Preferred Stock and
Depositary Shares, the "Securities"); and (B) an indeterminate amount of
Common Stock that may be issued upon conversion of Debt Securities,
Preferred Stock, or Depositary Shares, as set forth in the Registration
Statement on Form S-3 (the "Registration Statement") that is being filed on
the date of this letter with the Securities and Exchange Commission by the
Company pursuant to the Securities Act of 1933, as amended (the "Act").
The Securities are to be issued, separately or together, in one
or more series and are to be sold from time to time as set forth in the
Registration Statement, the Prospectuses contained therein (each, a
"Prospectus"), and any amendments or supplements thereto.
This opinion letter is Exhibit 5.1 to the Registration Statement
and is being delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Act.
In connection with the opinions contained in this letter, we have
examined the Registration Statement, the Restated Articles of Incorporation
and Bylaws of the Company, the corporate action taken by the Company
relating to the Securities and their issuance, and such other documents as
we have deemed appropriate as a basis for the opinions expressed below. In
our review, we have assumed the genuineness of all signatures, the legal
capacity of all natural persons, the authenticity of all documents
<PAGE>
submitted to us as originals, the conformity to original documents of all
documents submitted to us as copies, and the authenticity of the originals
of such copies. In making our review of documents executed, or to be
executed, by parties other than the Company, we have assumed that the
parties had, or will have, the power, corporate or other, to enter into and
perform all obligations under the documents and have also assumed the due
authorization by all requisite action, corporate or other, and execution
and delivery by those parties of the documents and that the documents
constitute valid and binding obligations of those parties. As to any facts
material to the opinions expressed in this letter that were not
independently verified or established, we have relied upon oral or written
statements and representations of officers of the Company.
Based on the foregoing, we are of the opinion that when (1) the
Registration Statement shall have been declared effective by order of the
Securities and Exchange Commission, (2) the terms of any class or series of
such Securities have been authorized by appropriate corporate action of the
Company, and (3) such Securities have been issued and sold upon the terms
and conditions set forth in the Registration Statement, the applicable
Prospectus, and the applicable supplement(s) to such Prospectus, then (a)
the Debt Securities will be validly authorized and issued and binding
obligations of the Company, and (b) the shares of the Preferred Stock and
Common Stock will be legally issued, fully paid, and non-assessable.
In rendering this opinion, we are not expressing an opinion as to
the laws of any jurisdiction other than the State of Michigan and the
United States of America, and we assume no responsibility as to the
applicability of the laws of any other jurisdiction to the subject matter
hereof or to the effects of such laws thereon.
This opinion is rendered to you and for your benefit solely in
connection with the registration of the Securities. This opinion may not
be relied on by you for any other purpose and may not be relied upon by,
nor may copies thereof be provided to, any other person, firm, corporation,
or entity for any purposes whatsoever without our prior written consent.
We hereby consent to be named in the Registration Statement and
in each of the Prospectuses as attorneys who passed upon the legality of
the Securities and to the filing of a copy of this opinion as Exhibit 5.1
to the Registration Statement. Unless the prior written consent of our
firm is obtained, this opinion is not to be quoted or otherwise referred to
in any written report, proxy statement, or other registration statement,
nor is it to be filed with or furnished to any other governmental agency or
other person, except as otherwise required by law.
WARNER NORCROSS & JUDD LLP
/s/Gordon R. Lewis, a Partner
Gordon R. Lewis, a Partner
-2-
<PAGE>
EXHIBIT 12.1
OLD KENT FINANCIAL CORPORATION
Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30 YEARS ENDED DECEMBER 31
---------------- ------------------------------------------
(dollar amounts in thousands)
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income before income taxes $147,182 $142,017 $273,885 $238,722 $214,613 $205,702 $198,298
Fixed charges 68,326 42,916 99,490 70,477 70,682 38,646 22,137
-------- -------- -------- -------- -------- -------- --------
$215,508 $184,933 $373,375 $309,199 $285,295 $244,348 $220,435
======== ======== ======== ======== ======== ======== ========
Fixed charges:
Interest expense
(other than interest on deposits) $ 68,306 $ 42,896 $ 99,449 $ 70,436 $ 70,641 $ 38,605 $ 22,096
Interest factor in rent expense -- -- -- -- -- -- --
Other 20 20 41 41 41 41 41
-------- -------- -------- -------- -------- -------- --------
$ 68,326 $ 42,916 $ 99,490 $ 70,477 $ 70,682 $ 38,646 $ 22,137
======== ======== ======== ======== ======== ======== ========
Ratio of earnings to fixed charges,
excluding interest on deposits 3.15 4.31 3.75 4.39 4.04 6.32 9.96
Including Interest On Deposits
Earnings:
Income before income taxes $147,182 $142,017 $273,885 $238,722 $214,613 $205,702 $198,298
Fixed charges 258,018 239,945 495,383 453,060 433,167 303,592 264,605
-------- -------- -------- -------- -------- -------- --------
$405,200 $381,962 $769,268 $691,782 $647,780 $509,294 $462,903
======== ======== ======== ======== ======== ======== ========
Fixed charges:
Interest expense $257,998 $239,925 $495,342 $453,019 $433,126 $303,551 $264,564
Interest factor in rent expense -- -- -- -- -- -- --
Other 20 20 41 41 41 41 41
-------- -------- -------- -------- -------- -------- --------
$258,018 $239,945 $495,383 $453,060 $433,167 $303,592 $264,605
======== ======== ======== ======== ======== ======== ========
Ratio of earnings to fixed charges,
including interest on deposits 1.57 1.59 1.55 1.53 1.50 1.68 1.75
</TABLE>
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Old Kent Financial Corporation:
As independent public accountants, we hereby consent to the incorporation
by reference in this Form S-3 Registration Statement of our report dated
January 14, 1998, included in Old Kent Financial Corporation's Annual
Report on Form 10-K for the year ended December 31, 1997, and to all
references to our Firm included in this Registration Statement.
/s/Arthur Andersen LLP
Chicago, Illinois
August 13, 1998
<PAGE>
EXHIBIT 24.1
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ JOHN D. BOYLES
John D. Boyles
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ ROBERT H. WARRINGTON
Robert H. Warrington
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ KEVIN T. KABAT
Kevin T. Kabat
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ RICHARD M. DEVOS, JR.
Richard M. DeVos, Jr.
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 23, 1998 /S/ JOHN P. KELLER
John P. Keller
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ DAVID J. WAGNER
David J. Wagner
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ MARGARET SELLERS WALKER
Margaret Sellers Walker
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ RICHARD L. ANTONINI
Richard L. Antonini
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ HENDRIK G. MEIJER
Hendrik G. Meijer
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 21, 1998 /S/ WILLIAM G. GONZALEZ
William G. Gonzalez
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ PERCY A. PIERRE
Percy A. Pierre
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ MARILYN J. SCHLACK
Marilyn J. Schlack
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ PETER F. SECCHIA
Peter F. Secchia
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ WILLIAM P. CRAWFORD
William P. Crawford
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ JAMES P. HACKETT
James P. Hackett
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ ERINA HANKA
Erina Hanka
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ EARL D. HOLTON
Earl D. Holton
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ MICHAEL J. JANDERNOA
Michael J. Jandernoa
<PAGE>
LIMITED POWER OF ATTORNEY
(DEBT AND EQUITY PROGRAM)
The undersigned, in his or her capacity as a director or officer, or both,
hereby appoints DAVID J. WAGNER, WILLIAM L. SANDERS, ALBERT T. POTAS, and
MARY TUUK, and any of them individually, his or her attorney-in-fact with
full power of substitution:
1. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of Old Kent Financial
Corporation (the "Company"), a Registration Statement and any amendments
and post-effective amendments thereto (collectively, the "Registration
Statement"), for the registration under the Securities Act of 1933, as
amended (the "Act"), of up to $250,000,000 of debt and equity securities
(the "Maximum Aggregate Amount") consisting of (a) senior or subordinated
debt securities, including medium-term notes, warrants to purchase debt
securities, debt securities with warrants attached thereto and debt
securities which are convertible into or exchangeable for capital
securities of the Company (collectively, the "Debt Securities"), which Debt
Securities may be denominated in U.S. dollars or in foreign currencies
(including any composite currency) or in amounts determined in reference to
one or more indices or determined otherwise, plus such additional principal
amount as may be necessary, if Debt Securities are issued with an original
issue discount, to result in the aggregate initial offering price of such
Debt Securities not to exceed the Maximum Aggregate Amount, (b) shares of
preferred stock of the Company, which shares of preferred stock may
include, but shall not be limited to, fixed rate perpetual preferred stock
and preferred stock which is convertible into common stock of the Company,
and warrants to purchase preferred stock (the "Preferred Shares"), and
(c) shares of common stock of the Company and warrants to purchase the
common stock (the "Common Shares");
2. To file any such Registration Statement with the Securities and
Exchange Commission;
3. To take all other actions such attorney-in-fact may deem
appropriate to effect and maintain the registration of the Debt Securities,
the Preferred Shares and the Common Shares; and
4. To sign for him or her, in his or her name and in his or her
capacity as an officer or director, or both, of the Company, all documents
and instruments which such attorney-in-fact may deem appropriate in
connection with the registration, qualification or exemption of the Debt
Securities, the Preferred Shares and the Common Shares under the securities
laws of any state or other jurisdiction.
February 16, 1998 /S/ FRED P. KELLER
Fred P. Keller
<PAGE>
EXHIBIT 99.1
The information in this prospectus supplement is not complete and may be
changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus
supplement is not an offer to sell these securities and it is not soliciting
an offer to buy these securities in any state where the offer or sale is
not permitted.
SUBJECT TO COMPLETION, DATED _______, 199_
PROSPECTUS SUPPLEMENT
(To Prospectus Dated August 14, 1998)
$__,000,000
[OLD KENT LOGO]
OLD KENT FINANCIAL CORPORATION
_.__% SUBORDINATED NOTES, DUE 20__
The ___% Subordinated Notes due 20__ (the "Notes") will mature on
____, 20__. Interest on the Notes is payable semiannually on ____ and
____, beginning _____, 199_. The Notes may not be redeemed prior to their
stated maturity and will not be subject to any sinking fund. The Notes
will be unsecured and subordinated to the Senior Indebtedness of Old Kent
Financial Corporation ("Old Kent") as described in this Prospectus
Supplement. The Notes will not be listed on any securities exchange.
The Notes will be represented by "Global Securities" registered in the
name of the nominee of The Depository Trust Company ("DTC"). Interests in
the Global Securities will be shown on, and transfers thereof, will be
effected only through records maintained by DTC and its direct and indirect
participants. Except as described in this Prospectus Supplement, Notes in
definitive form will not be issued. Settlement for the Notes will be made
in immediately available funds. The Notes will trade in DTC's Same-Day
Funds Settlement System until maturity, and secondary market trading
activity in the Notes will also settle in immediately available funds. So
long as the Notes are represented by the Global Securities, all payments of
principal and interest on the Notes will be made by Old Kent in immediately
available funds.
THE INFORMATION IN THIS PROSPECTUS SUPPLEMENT SUPPLEMENTS, AND SHOULD
BE READ IN CONJUNCTION WITH, THE INFORMATION CONTAINED IN THE ACCOMPANYING
PROSPECTUS.
<PAGE>
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES REGULATOR HAS APPROVED OR DISAPPROVED OF THESE SECURITIES NOR
PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE NOT SAVINGS ACCOUNTS, DEPOSITS, OR OTHER
OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY OF OLD KENT AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
<TABLE>
<CAPTION>
Price to Underwriting Proceeds to
Public<F1> Discount Old Kent<F2>
<S> <C> <C> <C>
Per Capital Security . . . . . $ <F2> $
Total . . . . . . . . . . . . $ <F2> $
<FN>
<F1> Plus accrued distributions, if any, from ____________, 199_.
<F2> Before deducting expenses of the offering payable by Old Kent
estimated to be $__,000.
</FN>
</TABLE>
-------------
The Notes are offered by the Underwriters subject to prior sale, when
as and if delivered to and accepted by the Underwriters, and subject to the
Underwriters' right to reject any order in whole or in part and to
withdraw, cancel or modify the offer without notice. It is expected that
delivery of the Notes will be made in book-entry form only, through the
facilities of DTC, on or about _____, 199_, against payment in immediately
available funds.
-------------
[names of managing or lead underwriters]
The date of this Prospectus Supplement is _________, 199_.
<PAGE>
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
PAGE
Description of The Notes . . . . . . . . . . . . . . . . . . . . . S-3
Recent Developments. . . . . . . . . . . . . . . . . . . . . . . . S-5
Purpose of The Offering. . . . . . . . . . . . . . . . . . . . . . S-5
Ratio of Earnings to Fixed Charges . . . . . . . . . . . . . . . . S-5
Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . S-6
Selected Consolidated Financial Data . . . . . . . . . . . . . . . S-7
Underwriting . . . . . . . . . . . . . . . . . . . . . . . . . . . S-9
Legal Opinions . . . . . . . . . . . . . . . . . . . . . . . . . .S-10
PROSPECTUS
PAGE
Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Old Kent Financial Corporation . . . . . . . . . . . . . . . . . . . 5
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Supervision, Regulation And Other Matters. . . . . . . . . . . . . . 6
Description of Old Kent's Capital Securities . . . . . . . . . . . . 7
Description of Common Stock . . . . . . . . . . . . . . . . . . . .10
Description of Preferred Stock . . . . . . . . . . . . . . . . . . .11
Description of Depositary Shares . . . . . . . . . . . . . . . . . .15
Description of Debt Securities . . . . . . . . . . . . . . . . . . .18
Description of Securities Warrants . . . . . . . . . . . . . . . . .26
Global Securities . . . . . . . . . . . . . . . . . . . . . . . . .28
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . .30
Validity of The Securities . . . . . . . . . . . . . . . . . . . . .32
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
Where to Find More Information . . . . . . . . . . . . . . . . . . .32
-------------
No dealer, salesperson or other person has been authorized to
give any information or to make any representation not contained in
this Prospectus Supplement or the Prospectus and, if given or made,
such information or representation must not be relied upon as having
been authorized by Old Kent. This Prospectus Supplement and the
accompanying prospectus do not constitute an offer to sell or a
solicitation of an offer to buy any of the Notes in any jurisdiction
to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. The delivery of this Prospectus
Supplement and the accompanying Prospectus at any time does not imply
that the information they contain is correct as of any time subsequent
to their respective dates.
-------------
S-2
<PAGE>
DESCRIPTION OF THE NOTES
The following description of the particular terms of the Notes
offered by this Prospectus Supplement supplements, and to the extent
inconsistent replaces, the description of the general terms and
provisions of the Notes set forth in the accompanying Prospectus under
"DESCRIPTION OF DEBT SECURITIES", to which description reference is
made. The accompanying Prospectus sets forth the meaning of certain
capitalized terms used in this Prospectus Supplement and not otherwise
defined in this Prospectus Supplement.
GENERAL
The Notes are a series of Subordinated Securities described in the
accompanying Prospectus. They will be limited to $___ million aggregate
principal amount, and will mature on _____, 20__. Refer to the
accompanying Prospectus for a detailed summary of additional provisions
of the Notes and of the Subordinated Indenture under which the Notes are
issued.
The Notes will bear interest at the rate of __% per annum from
____, 199__, payable semiannually in arrears on _____ and ____ of each
year, commencing _____ 1, 199__, to the persons in whose names the Notes
(or any predecessor Notes) are registered at the close of business on
the preceding _____ 15 or ____ 15, as the case may be. Interest will be
computed on the basis of a 360-day year consisting of twelve 30-day
months.
The Notes may not be redeemed prior to their stated maturity and
will not be subject to any sinking fund. The Notes are to be issued
under an Indenture relating to subordinated debt securities dated as of
____, 199_ (the "Subordinated Indenture") between Old Kent and
____________, as trustee (the "Trustee"). The Indenture is incorporated
by reference as an exhibit to the Registration Statement of which the
Prospectus Supplement is a part.
SUBORDINATION
The Notes will be unsecured and will be subordinated and junior in
right of payment to Old Kent's obligations to the holders of Senior
Indebtedness of Old Kent as described under "DESCRIPTION OF DEBT
SECURITIES" in the accompanying Prospectus. At June 30, 1998, the
aggregate amount of Senior Indebtedness senior to the Notes was
approximately $____ million. The Subordinated Indenture does not
prohibit or limit the incurrence of additional Senior Indebtedness by
Old Kent.
S-3
<PAGE>
The Notes will rank equally with Old Kent's 6.625% Subordinated
Notes due November 15, 2005. The Notes will be senior to Old Kent's
floating rate junior subordinated debenture, dated January 31, 1997,
issued to the Old Kent Capital Trust I. [Text to be provided discussing
any additional debt as of the date of this Prospectus Supplement and its
rank relative to the Notes]
LIMITED RIGHT OF ACCELERATION
Payment of principal of the Notes may be accelerated only in the
case of the bankruptcy, insolvency, or reorganization of Old Kent.
There is no right of acceleration in the case of a default in the
payment of principal of, premium, if any or interest on the Notes or in
the performance of any other covenant of Old Kent in the Subordinated
Indenture or in the Notes. See "DESCRIPTION OF DEBT SECURITIES --
Subordinated Debt" in the accompanying Prospectus.
DELIVERY AND FORM
The Notes initially will be represented by global securities
("Global Securities") deposited with DTC and registered in the name of
the nominee of DTC, except as set forth in the Prospectus. The Notes
will be available for purchase in denominations of $1,000 and integral
multiples thereof, in book-entry form only. Unless and until
certificated Notes are issued under the limited circumstances described
below, no beneficial owner of a Note shall be entitled to receive a
definitive certificate representing a Note. So long as DTC or any
successor depositary (collectively, the "Depositary") or its nominee is
the registered holder of the Global Securities, the Depositary, or such
nominee, as the case may be, will be considered to be the sole owner or
holder of the Notes for all purposes of the Subordinated Indenture.
BOOK-ENTRY SYSTEM
DTC has advised Old Kent that it is a limited-purpose trust company
organized under the laws of the State of New York, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code, and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act. DTC was
created to hold securities for its participating organizations (the
"Participants") and facilitate the clearance and settlement of
securities transactions between Participants through electronic
book-entry changes in accounts of its Participants, thereby eliminating
the need for physical movement of certificates. Participants include
securities brokers and dealers, banks, trust companies and clearing
corporations and may include certain other organizations (including the
Underwriters). Indirect access to the DTC system also is available to
others such as banks, brokers, dealers and trust companies that clear
S-4
<PAGE>
through or maintain a custodial relationship with a Participant, either
directly or indirectly (the "Indirect Participants"). Beneficial owners
of the Notes that are not Participants or Indirect Participants but
desire to purchase, sell or otherwise transfer ownership of, or other
interest in, the Notes may do so only through Participants and Indirect
Participants.
Payments with respect to the Global Securities will be made by the
Paying Agent to DTC or any successor depositary, or its nominee. Old
Kent expects that any such Depositary, or its nominee, upon receipt of
any payment of principal of or interest on the Global Securities will
credit the amounts of its Participants with payments in amounts
proportionate to such Participants' ownership interest in the Global
Securities. Beneficial owners of the Notes, directly or indirectly,
will receive distributions of principal and interest in proportion to
their beneficial ownership through the Participants. Consequently, any
payments to beneficial owners of the Notes will be subject to the terms,
conditions and time of payment required by the Depositary, the
Participants and Indirect Participants, as applicable. Old Kent expects
that such payments will be governed by standing instructions and
customary practices, as is now the case with securities held for the
accounts of customers registered in "street name." Such payments will
be the responsibility of such Participants and Indirect Participants.
Neither Old Kent, the Trustee for the Notes, any Paying Agent nor the
Note Registrar for the Notes will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in the Notes or for maintaining,
supervising or reviewing any record relating to such beneficial
ownership interests.
Under the rules, regulations and procedures creating and affecting
DTC and its operations, DTC is required to make book-entry transfers
among Participants on whose behalf it acts with respect to the Notes and
is required to receive and transmit distributions of principal and
interest on the Notes. Participants and Indirect Participants with
which beneficial owners of the Notes have accounts similarly are
required to make book-entry transfers and receive and transmit such
payments on behalf of their respective beneficial owners of the Notes.
Accordingly, although beneficial owners of the Notes will not possess
certificated Notes, beneficial owners will receive payments and will be
able to transfer their interests.
Since it is anticipated that the only holder of the Notes will be
the Depositary or its nominee, beneficial owners of the Notes will not
be recognized as holders of the Notes under the Subordinated Indenture
unless certificated definitive Notes are issued. So long as the Notes
are represented by the Global Securities, beneficial owners of the Notes
will only be permitted to exercise the rights of holders of Notes
S-5
<PAGE>
indirectly through the Participants who in turn will exercise such
rights through the Depositary. If the Depositary is at any time
unwilling, unable or ineligible to continue as depositary and a
successor depositary is not appointed by Old Kent within 90 days, Old
Kent will issue individual Notes in definitive form in exchange for the
Global Securities representing the Notes. In addition, Old Kent may at
any time and in its sole discretion determine not to have the Notes
represented by Global Securities and, in such event, will issue
individual Notes in definitive form in exchange for the Global Securities
representing the Notes. In either instance, Old Kent will issue Notes
in definitive form equal in aggregate principal amount to the Global
Securities, in such names and in such principal amounts as the Depositary
shall request.
RECENT DEVELOPMENTS
[Text to be provided based on any previously unreported recent
developments as of the date of this Prospectus Supplement.]
PURPOSE OF THE OFFERING
The primary purpose of the offering is to further strengthen Old
Kent's regulatory capital position. Because of regulatory capital
requirements, the level of assets that Old Kent may maintain is limited
by the level of regulatory capital. An increase in Old Kent's
regulatory capital, which would result from the offering, would support
an expansion of Old Kent's assets, regardless of the immediate
application of the cash proceeds of the offering. The funds generated
directly by the offering will be used to fund investments in loans and
securities and for general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES
Old Kent's consolidated ratios of earnings to fixed charges for
each of the periods indicated are set forth below:
S-6
<PAGE>
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Excluding Interest on Deposits 3.15 4.31 3.75 4.39 4.04 6.32 9.96
Including Interest on Deposits 1.57 1.59 1.55 1.53 1.50 1.68 1.75
</TABLE>
For purposes of computing the ratios of earnings to fixed charges,
earnings represent net income plus applicable income taxes and fixed
charges. Fixed charges, excluding interest on deposits, represent
interest expense on long-term debt and short term borrowings and the
interest factor included in rents (which is deemed to be one-third of
rental expense). Fixed charges, including interest on deposits,
represent all interest expense and the interest factor included in
rents. As of the date of this table, Old Kent had no outstanding
securities entitled to preference dividends.
CAPITALIZATION
The following table sets forth the consolidated capitalization of
Old Kent and its subsidiaries and certain ratios as of June 30, 1998,
and as adjusted to give effect to the consummation of the offering of
the Notes. The following data should be read in conjunction with the
consolidated financial statements and related notes of Old Kent and its
subsidiaries incorporated in this Prospectus Supplement by reference.
<TABLE>
<CAPTION>
--------------------------------
ACTUAL AS ADJUSTED
------ -----------
(dollars in thousands)
<S> <C> <C>
Long-term debt:
6.625% Subordinated Notes due November 15, 2005 . . . . $ 100,000 $ 100,000
_.___% Subordinated Notes due ___________, 20__ -- 250,000
Guaranteed preferred beneficial interests in Old Kent's
Junior Subordinated Debentures due 2027 . . . . . 100,000 100,000
Shareholders' equity:
Preferred stock: 25,000,000 shares authorized and unissued -- --
Common stock, par value $1.00; 300,000,000 shares authorized;
94,157,000 issued and outstanding. . . . . . . . . . . . 94,157 94,157
Capital surplus . . . . . . . . . . . . . . . . . . . . . 237,996 237,996
S-7
<PAGE>
Retained earnings . . . . . . . . . . . . . . . . . . . . 626,490 626,490
---------- -----------
Total common stock, capital surplus and retained earnings 958,664 958,664
Unrealized gains (losses) on securities available-for-sale 6,063 6,063
---------- -----------
Total Shareholders' Equity . . . . . . . . . . . . . . 964,706 964,706
---------- -----------
Total Capitalization . . . . . . . . . . . . $1,164,706 $ 1,414,707
========== ===========
Risk-based capital ratios:
Tier 1 capital to risk-adjusted assets. . . . . . . . . 8.93% 8.93%
Regulatory "well capitalized" tier 1 ratio. . . . . . . 6% 6%
Regulatory minimum. . . . . . . . . . . . . . . . . . . 4% 4%
Total capital to risk-adjusted assets . . . . . . . . . 11.13% 13.52%
Regulatory "well capitalized" total capital ratio . . . 10% 10%
Regulatory minimum. . . . . . . . . . . . . . . . . . . 8% 8%
Leverage ratio. . . . . . . . . . . . . . . . . . . . . 6.76% 6.76%
Regulatory "well capitalized" leverage ratio . . . . . 5% 5%
Regulatory minimum. . . . . . . . . . . . . . . . . . . 3% 3%
</TABLE>
_____________
S-8
<PAGE>
<TABLE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following table sets forth selected historical consolidated financial information for Old
Kent as of and for the periods indicated below. The summary consolidated financial data as of
and for the five years ended December 31, 1997 were derived from the audited consolidated
financial statements of Old Kent incorporated in this Prospectus Supplement by reference. The
selected consolidated financial data should be read in conjunction with Old Kent's audited
financial statements contained in Old Kent's Annual Report on Form 10-K for the year ended
December 31, 1997. The selected consolidated financial data as of and for the six months ended
June 30, 1998 and 1997 are unaudited and include all adjustments consisting only of normal
recurring accruals that, in the opinion of management, are necessary for a fair statement of
results for those periods.
<CAPTION>
SIX MONTHS ENDED
JUNE 30, YEARS ENDED DECEMBER 31,
1998 1997 1997 1996 1995 1994 1993
---------- ---------- ------------- ------------ ---------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED RESULTS OF OPERATIONS:
Interest income . . . . . . . $ 524,198 $ 500,306 $ 1,021,269 $ 947,307 $ 909,819 $ 759,186 $ 692,151
Interest expense. . . . . . . 257,998 239,925 495,342 453,019 433,126 303,551 264,564
------------ ----------- ------------- ------------ ----------- ----------- ----------
Net interest income . . . . . 266,200 260,381 525,927 494,288 476,693 455,635 427,587
Provision for credit losses 26,439 21,962 45,677 35,236 21,666 22,465 34,822
------------ ----------- ------------- ------------ ----------- ----------- ----------
Net interest income after
provision for credit losses 239,761 238,419 480,250 459,052 455,027 433,170 392,765
Other income. . . . . . . . . 170,186 142,473 284,423 212,164 161,718 136,010 134,531
Other expense . . . . . . . . 262,765 238,875 490,788 432,494 402,132 363,478 328,998
------------ ----------- ------------- ------------ ----------- ----------- ----------
Income before income tax
expense. . . . . . . . . . 147,182 142,017 273,885 238,722 214,613 205,702 198,298
Income tax expense. . . . . . 51,053 48,202 93,581 80,021 72,799 68,618 66,974
------------ ----------- ------------- ------------ ----------- ----------- ----------
Net income. . . . . . . . . . $ 96,129 $ 93,815 $ 180,304 $ 158,701 $ 141,814 $ 137,084 $ 131,324
============ =========== ============= ============ =========== =========== ==========
CONSOLIDATED AVERAGE BALANCES:
Total assets. . . . . . . . . 13,961,749 13,013,850 $ 13,298,246 $12,251,860 $11,674,214 $10,761,022 $9,718,875
Loans . . . . . . . . . . . . 8,254,610 8,363,809 8,419,267 7,795,771 7,230,657 6,060,822 5,216,229
Deposits. . . . . . . . . . . 10,324,833 10,232,575 10,268,402 9,762,694 9,317,428 8,805,055 8,064,628
Subordinated debt . . . . . . 100,000 100,000 100,000 100,000 12,603 -- 5,028
Guaranteed preferred beneficial
interest in Old Kent's
junior subordinated debentures. 100,000 100,000 100,000 -- -- --
Total shareholders' equity <F1> 991,284 1,014,651 1,027,100 1,000,841 960,858 884,415 802,016
</TABLE>
S-9
<PAGE>
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, YEARS ENDED DECEMBER 31,
1998 1997 1997 1996 1995 1994 1993
---------- ---------- ------------- ------------ ---------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED RATIOS:
Return on average assets<F2>. . . . 1.38% 1.44% 1.36% 1.30% 1.21% 1.27% 1.35%
Return on average equity<F2>. . . . 19.39 18.49 17.55 15.86 14.76 15.50 16.37
Average equity to average
assets<F2> . . . . . . . . . . . 7.10 7.80 7.72 8.17 8.23 8.22 8.25
Period end capital to risk
adjusted assets<F3>:
Tier 1 . . . . . . . . . . . . . 9.16<F5> 10.56 9.52 9.45 10.59 10.84 12.61
Total. . . . . . . . . . . . . . 11.35<F5> 12.84 11.73 11.75 13.01 12.11 13.87
Period end Tier 1 leverage
ratio <F3> . . . . . . . . . . . 7.11<F5> 7.94 7.37 7.31 7.88 7.30 7.78
Average net interest margin. . . . . 4.21 4.40 4.34 4.41 4.46 4.63 4.82
Net Charge-offs to
average loans. . . . . . . . . . .47 .62 .58 0.54 0.19 0.16 0.33
Impaired loans to loans <F4>. . . . .85 .55 .65 0.53 0.58 0.88 1.12
Allowance to loans. . . . . . . . . 2.01 1.88 1.86 2.05 2.35 2.44 2.72
Allowance to impaired
loans<F4>. . . . . . . . . . . . 237 342 288 388 403 277 243
<FN>
____________________
<F1> Average total shareholders' equity includes average net unrealized gains (losses) on investment securities available
for sale.
<F2> Average assets include average unrealized gains (losses) on investment securities available for sale.
<F3> The Federal Reserve guidelines for risk-based capital requirements applicable to all bank holding companies require
minimum ratios of Tier 1 and total capital to risk-adjusted assets to be 4% and 8%, respectively. The Federal Reserve's
minimum leverage guidelines require all bank holding companies to maintain a ratio of Tier 1 capital to average assets
of at least 3%.
<F4> Impaired loans include nonaccrual and restructured loans.
<F5> As of March 31, 1998.
</FN>
</TABLE>
S-10
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in the underwriting
agreement dated _____, 199_ (the "Underwriting Agreement"), Old Kent
has agreed to sell to each of the Underwriters named below, and each
of the Underwriters, for whom ______________________ [is] [are] acting
as representative[s] (the "Representative[s]"), has severally agreed
to purchase from Old Kent, the respective principal amounts of the
Notes set forth opposite its name below.
<TABLE>
<CAPTION>
Principal
Amounts
Underwriter of Notes
- ------------------------------------------------------ -------------------
<S> <C>
[insert name[s] of Representative[s]] . . . . . . . . . .
[insert names of other Underwriters] . . . . . . . . . . . --------------
Total . . . . . . . . . . . . . . . . . . . . . ==============
</TABLE>
In the Underwriting Agreement, the several Underwriters have
agreed, subject to the terms and conditions set forth therein, to
purchase all the Notes offered if any of the Notes are purchased. If
an Underwriter defaults, the Underwriting Agreement provides that, in
certain circumstances, the purchase commitments of the nondefaulting
Underwriters may be increased or the Underwriting Agreement may be
terminated.
The following table sets forth the aggregate compensation to be
paid to the Underwriters in connection with the issuance and
distribution of the Capital Securities:
<TABLE>
<CAPTION>
UNDERWRITING DISCOUNT PER $1,000 NOTE TOTAL DISCOUNT
<S> <C> <C>
$__________ $__________
</TABLE>
Total expenses in connection with this offering, including
underwriting discount, are estimated to be $____________.
The Underwriters have advised Old Kent that they propose initially
to offer the Notes to the public at the Price to Public set forth on
the cover page of this Prospectus Supplement, and to certain dealers
S-11
<PAGE>
at such price less a concession not in excess of .__% of the principal
amount of the Notes. The Underwriters may allow, and such dealers may
reallow, a discount not in excess of .___% of such principal amount on
sales to certain other dealers. After the initial public offering,
the public offering price, concession, and discount may be changed.
The Notes are a new issue of securities with no established
trading market. Old Kent does not intend to apply for listing of the
Notes on any securities exchange. Old Kent has been advised by the
Underwriters that they may make a market in the Notes. The
Underwriters, however, are not obligated to make a market in the Notes
and may discontinue any market making at any time without notice. Old
Kent cannot provide any assurance that a secondary market for the
Notes will develop.
In connections with this offering, the underwriters may effect
transactions that stabilize or maintain the market price of the Notes
at a level above that which might otherwise prevail in the open
market. Such transactions may be effected in the over the counter
market or otherwise. Such stabilizing, if commenced, may be
discontinued at any time.
Old Kent has agreed to indemnify the several Underwriters against,
or contribute to payments that the Underwriters may be required to
make in respect of, certain liabilities, including liabilities under
the Securities Act of 1933, as amended.
Certain of the Underwriters or their affiliates have provided from
time to time, and expect to provide in the future, investment or
commercial banking services to Old Kent and its affiliates, for which
these Underwriters or their affiliates have received or will receive
customary fees and commissions.
LEGAL OPINIONS
The validity of the Notes will be passed upon for Old Kent by
Warner Norcross & Judd LLP, Grand Rapids, Michigan, and for the
Underwriters by __________. Warner Norcross & Judd LLP and certain
members of the firm are indebted to, and have banking and other trust
relationships with Old Kent Bank, a subsidiary of Old Kent. As of May
27, 1998, partners of and attorneys employed by Warner Norcross & Judd
LLP were the beneficial owners of 416,249 shares of Old Kent's common
stock, which had an aggregate market value of $16,259,560 on that date
(such number of shares has not been adjusted for a subsequent 5% stock
dividend). Shares reported as beneficially owned include all shares
as to which those persons have the direct or indirect, sole or shared,
power to direct voting or disposition, including personal shares as
well as shares held in fiduciary capacities.
S-12
